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I * 1 






The 



NORTH CAROLINA 

REGISTER 



IN TfflS ISSUE 



CONa 

TIYUl U W I 

tiom| II u 



EXECUTIVE ORDERS 



IN ADDITION 

Medical Assistance 



PROPOSED RULES 
Correction 

Electrical Contractors 
Electrolysis Examiners 

Environment, Health, and Natural Resources 
Human Resources 
Justice 
Labor 

Medical Examiners 
Nursing, Board of 
Public Education 
State Personnel 






RRC OBJECTIONS 



NOV 3 1994 

KATHEINE R EVERETT 
LAW LIEFARY 



CONTESTED CASE DECISIONS 



ISSUE DATE: November 1, 1994 



Volume 9 • Issue 15 • Pages 1152 - 1241 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 

The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the General 
Statutes. All proposed administrative rules and notices of public 
hearings filed under G.S. 1 50B-21 .2 must be published in the Register. 
The Register will typically comprise approximately fifty pages per 
issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription at 
a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars ($8.00). 

Requests for subscription to the North Carolina Register should be 
directed to the Office of Administrative Hearings, P. O. Drawer 27447, 
Raleigh, N.C. 27611-7447. 

ADOPTION, AMENDMENT, AND REPEAL OF 
RULES 

The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 150B 
of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must first 
publish notice of the proposed action in the North Carolina Register. 
The notice must include the time and place of the public hearing (or 
instructions on how a member of the public may request a hearing); a 
statement of procedure for public comments; the text of the proposed 
rule or the statement of subject matter; the reason for the proposed 
action; a reference to the statutory authority for the action and the 
proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days must 
elapse following publication of the notice in the North Carolina 
Register before the agency may conduct the public hearing and at least 
30 days must elapse before the agency can take action on the proposed 
rule. An agency may not adopt a rule that differs substantially from the 
proposed form published as part of the public notice, until the adopted 
version has been published in the North Carolina Register for an 
additional 30 day comment period. 

When final action is taken, the promulgating agency must file the 
rule with the Rules Review Commission (RRC). After approval by 
RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative Hearings 
for publication in the North Carolina Administrative Code (NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or before 
filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may issue tempt 
rary rules. Within 24 hours of submission to OAH, the Codifier 
Rules must review the agency's written statement of findings of nee 
for the temporary rule pursuant to the provisions in G.S. 150B-21.1. 
the Codifier determines that the findings meet the criteria in G. 
150B-21.1, the rule is entered into the NCAC. If the Codifi 
determines that the findings do not meet the criteria, the rule is returnf 
to the agency. The agency may supplement its findings and resubn 
the temporary rule for an additional review or the agency may respoi 
that it will remain with its initial position. The Codifier, thereafter, w 
enter the rule into the NCAC. A temporary rule becomes effect! 
either when the Codifier of Rules enters the rule in the Code or on tl 
sixth business day after the agency resubmits the rule without chang 
The temporary rule is in effect for the period specified in the rule or 11 
days, whichever is less. An agency adopting a temporary rule mu 
begin rule-making procedures on the permanent rule at the same tin 
the temporary rule is filed with the Codifier. 

NORTH CAROLINA ADMINISTRATIVE CODE 

The North Carolina Administrative Code (NCAC) is a compilatk 
and index of the administrative rules of 25 state agencies and '. 
occupational licensing boards. The NCAC comprises approximate 
1 5,000 letter size, single spaced pages of material of which appro: 
mately 35% is changed annually. Compilation and publication oft 
NCAC is mandated by G.S. 150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
assigned a separate title which is further broken down by chapte 
Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of tv 
dollars and 50 cents ($2.50) for 10 pages or less, plus fifte 
cents ($0.15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling 
excess of 15,000 pages. It is supplemented monthly w 
replacement pages. A one year subscription to the f 
publication including supplements can be purchased 
seven hundred and fifty dollars ($750.00). Individual vi 
umes may also be purchased with supplement service. F 
newal subscriptions for supplements to the initial publicati 
are available. 

Requests for pages of rules or volumes of the NCAC should 
directed to the Office of Administrative Hearings. 

CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, pi 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to Volu 
1 , Issue 1 , pages 101 through 201 oftheNorthCarolinaRegisterissx 
on April 1, 1986. 



FOR INFORMATION CONTACT: Office of Administra- 
tive Hearings, ATTN: Rules Division, P.O. Drawer 27447, 
Raleigh, North Carolina 2761 1-7447, (919) 733-2678. 









i 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director of APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE CONTENTS 



I. EXECUTIVE ORDERS 

Executive Orders 62-63 1152 

II. IN ADDITION 
Human Resources 

Medical Assistance 1155 

in. PROPOSED RULES 
Correction 

Prisons, Division of 1157 

Environment, Health, and 
Natural Resources 

Coastal Management 1185 

Parks and Recreation 1194 

Human Resources 

Medical Care 1161 

Social Services 1167 

Justice 

Alarm Systems Licensing Board 1175 

Private Protective Services Board . 1174 

Labor 
Private Personnel Services 1176 

Licensing Boards 

Electrical Contractors 1199 

Electrolysis Examiners 1204 

Medical Examiners 1206 

Nursing, Board of 1209 

Public Education 
Elementary and Secondary 1197 

State Personnel 
Office of State Personnel 1214 

IV. RRC OBJECTIONS 1216 

V. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 1218 

Text of Selected Decisions 

94 EHR 0392 1231 

94 DOJ 0574 1234 

VI. CUMULATIVE INDEX 1239 



This publication is printed on permanent, 
acid-free paper in compliance with 
G.S. 125-11.13. 



NORTH CAROLINA REGISTER 

Publication Schedule 

(November 1994 - September 1995) 



Volume 

and 

Issue 

Number 


Issue 
Date 


Last Day 

for 

Filing 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 

Date for 

Public 

Hearing 

75 days 

from 

notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


Last Day 

to Submit 

toRRC 


** Earliest 

Effective 

Date 


9:15 


11/01/94 


10/11/94 


10/18/94 


11/16/94 


12/01/94 


12/20/94 


02/01/95 


9:16 


11/15/94 


10/24/94 


10/31/94 


11/30/94 


12/15/94 


12/20/94 


02/01/95 


9:17 


12/01/94 


11/07/94 


11/15/94 


12/16/94 


01/03/95 


01/20/95 


03/01/95 


9:18 


12/15/94 


11/22/94 


12/01/94 


12/30/94 


01/17/95 


01/20/95 


03/01/95 


9:19 


01/03/95 


12/08/94 


12/15/94 


01/18/95 


02/02/95 


02/20/95 


04/01/95 


9:20 


01/17/95 


12/21/94 


12/30/94 


02/01/95 


02/16/95 


02/20/95 


04/01/95 


9:21 


02/01/95 


01/10/95 


01/18/95 


02/16/95 


03/03/95 


03/20/95 


05/01/95 


9:22 


02/15/95 


01/25/95 


02/01/95 


03/02/95 


03/17/95 


03/20/95 


05/01/95 


9:23 


03/01/95 


02/08/95 


02/15/95 


03/16/95 


03/31/95 


04/20/95 


06/01/95 


9:24 


03/15/95 


02/22/95 


03/01/95 


03/30/95 


04/17/95 


04/20/95 


06/01/95 


10:1 


04/03/95 


03/13/95 


03/20/95 


04/18/95 


05/03/95 


05/22/95 


07/01/95 


10:2 


04/17/95 


03/24/95 


03/31/95 


05/02/95 


05/17/95 


05/22/95 


07/01/95 


10:3 


05/01/95 


04/07/95 


04/17/95 


05/16/95 


05/31/95 


06/20/95 


08/01/95 


10:4 


05/15/95 


04/24/95 


05/01/95 


05/30/95 


06/14/95 


06/20/95 


08/01/95 


10:5 


06/01/95 


05/10/95 


05/17/95 


06/16/95 


07/03/95 


07/20/95 


09/01/95 


10:6 


06/15/95 


05/24/95 


06/01/95 


06/30/95 


07/17/95 


07/20/95 


09/01/95 


10:7 


07/03/95 


06/12/95 


06/19/95 


07/18/95 


08/02/95 


08/21/95 


10/01/95 


10:8 


07/14/95 


06/22/95 


06/29/95 


07/31/95 


08/14/95 


08/21/95 


10/01/95 


10:9 


08/01/95 


07/11/95 


07/18/95 


08/16/95 


08/31/95 


09/20/95 


11/01/95 


10:10 


08/15/95 


07/25/95 


08/01/95 


08/30/95 


09/14/95 


09/20/95 


11/01/95 


10:11 


09/01/95 


08/11/95 


08/18/95 


09/18/95 


10/02/95 


10/20/95 


12/01/95 


10:12 


09/15/95 


08/24/95 


08/31/95 


10/02/95 


10/16/95 


10/20/95 


12/01/95 



This table is published as a public service, and the computation of time periods are not to be deemed binding 
or controlling. Time is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule 
6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 

of any public hearing, whichever is longer. See G.S. 150B-21. 2(f) for adoption procedures. 

** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above, 

that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and 

that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st day of the next calendar 

month. 



Revised 10/94 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 62 

ESCORTS FOR FOREIGN RESEARCH 

REACTOR SPENT NUCLEAR FUEL 

WHEREAS, the United States Department of 
Energy intends to ship by rail Foreign Research 
Reactor Spent Nuclear-Fuel from Sunny Point 
Army Terminal in North Carolina to the Savannah 
River federal facility in South Carolina; 

WHEREAS, the United States Department of 
Energy has agreed that the State of North Carolina 
has a public safety interest in safeguarding these 
rail shipments; and 

WHEREAS, the United States Department of 
Energy and the State of North Carolina have 
agreed to allow law enforcement and other State 
officials to review the status of the tracks ahead of 
the shipments, accompany the shipments, and 
provide escort for these shipments. 

NOW, THEREFORE, by the authority vested in 
me as Governor by the laws and Constitution of 
the State of North Carolina, IT IS ORDERED: 

Section %. 

That for all Foreign Research Reactor Spent 
Nuclear Fuel shipped through the State of North 
Carolina, the North Carolina State Highway Patrol 
Commander shall assign such personnel and 
equipment as he deems necessary to accompany 
the shipments, to review the status of the tracks 
ahead of the shipments, and to escort the ship- 
ments. 

Section 2. 

That such other State employees, including 
members of the Department of Crime Control and 
Public Safety, Division of Emergency Manage- 
ment, and Department of Environment, Health, 
and Natural Resources, Division of Radiation 
Protection, shall be assigned as is deemed neces- 
sary by the respective Department heads. 

This Order is effective immediately and shall 
expire 60 days from this date unless terminated or 
extended by further Executive Order. 

Done in the Capital City of Raleigh, North 
Carolina, this the 9th day of September, 1994. 

EXECUTIVE ORDER NO. 63 

ESTABLISHING THE NORTH CAROLINA 

ALLIANCE FOR COMPETITIVE 



TECHNOLOGIES (NCACTS) 

WHEREAS, the development and promotion of 
a technology-based economy is critical to the long- 
term welfare of the State and its citizenry; 

WHEREAS, North Carolina ranks tenth in 
manufacturing shipments and has over 11,000 
manufacturing firms that must continually modern- 
ize to stay competitive; 

WHEREAS, North Carolina has leading national 
and international technology firms in areas such as 
pharmaceuticals, biotechnology, environmental 
technologies, telecommunications, electronics, 
materials, and computers; 

WHEREAS, the State has invested substantial 
funds in public and quasi-public not-for-profit 
institutions charged with the development and 
deployment of technology to create commercial 
products and modernize manufacturing production; 
and 

WHEREAS, the State has the potential to form 
a world class delivery and support system for 
technological innovation and manufacturing mod- 
ernization; 

NOW, THEREFORE, by the authority vested in 
me as Governor by the Constitution and laws of 
the State of North Carolina, IT IS ORDERED: 

Section 1. Establishment. 

The North Carolina Alliance for Competitive 
Technologies (the "Alliance") is hereby estab- 
lished. 

Section 2. Purpose. 

A. The Alliance has been established to apply 
innovation, technology and technical resources to 
promote economic growth in the State. It will 
serve as a central, strategic organization to guide 
existing resources and develop additional resources 
as necessary. It will insure the availability of a set 
of comprehensive, coordinated resources to meet 
industry needs for innovation and modernization. 

The Alliance has three primary objectives: 



1. 



2. 



To develop a comprehensive strategy and 
vision to guide the use of state public 
resources devoted to technology develop- 
ment and deployment. 
To organize public and private entities 
involved in technology to insure a ratio- 
nal, customer-driven delivery system that 



9:15 



NORTH CAROLINA REGISTER 



November 1, 1994 



1152 



EXECUTIVE ORDERS 



measures and rewards results; 
3. To match State investments with federal 

and other public and private investments 
for those initiatives critical to achieve- 
ment of the State's technology strategy 
and its implementation. 

B. The Alliance shall serve as a planning and 
coordinating organization for the State, charting 
future directions based on analysis of needs, 
demands and opportunities, and recommending 
future public investments in support of the State's 
overall technology strategy. 

C. The Alliance shall work specifically with 
legislatively established entities, such as the Infor- 
mation Resources Management Commission 
(IRMC), to assist them in their activities and 
oversight functions related to specific technologies. 

D. The Alliance shall coordinate state agencies 
and state-supported organizations involved in 
technology in accordance with a coherent long- 
range strategy and policies for application of 
technological resources to industry needs and 
economic development of the State. 

E. The Alliance shall strive to maintain North 
Carolina's strategic technology leadership and 
further develop the infrastructure base to maintain 
its competitive position. 

Section 3. Responsibilities. 

The Alliance shall have the following functions 
and responsibilities: 

A. To organize an office with a board of 
directors representative of the public and 
private sectors; 

B. To conduct needs analyses of selective 
industries and systems capacity reviews 
in order to insure a delivery system 
accountable to its industry clients; 

C. To develop common outcome-based 
evaluation standards and performance 
benchmarks for technology service pro- 
viders; 

D. To design a strategy for statewide and 
regional industrial centers of excellence, 
taking into account existing centers and 
their capabilities; 

E. To propose additional incentive systems 
to encourage adherence to strategies by 
providers, higher education institutions, 
and non-profit organizations involved in 
the technology development and deploy- 
ment system; 

F. To review, assess and propose additional 
initiatives that further assist the State's 
industry to maintain competitiveness in a 



G. 



H. 



I. 



world economy and maintain cutting-edge 
capabilities in technology; 
To provide recommendations on the 
strategic and effective use of state tech- 
nology investments for long-term eco- 
nomic development; 

To review the State's existing infrastruc- 
ture investments and analyze what addi- 
tional investments are necessary in order 
to develop and maintain the competitive- 
ness of North Carolina's industry; and 
To undertake such other activities as are 
necessary to accomplish the above items. 



Section 4± Specific Activities. 

A. To undertake studies and surveys and to 
convene focus groups, task forces, and committees 
to better determine industry needs in technology 
development and deployment; 

B. To undertake information gathering activities 
that focus on research, technology development 
and deployment for key industries. 

C. To work with existing oversight entities, 
including IRMC, and to coordinate existing and 
new initiatives of state agencies that involve 
technology development and deployment, and 
encourage cross-agency and intergovernmental 
cooperation and forming of private/public partner- 
ships; 

D. To coordinate the State's response to new 
Federal government initiatives in research and 
technology development that require state invest- 
ments or building of private/ public partnerships; 

Section 5. Board of Directors. 

A. The Alliance shall have a Board of Directors 
of 19 persons appointed by the Governor from 
among the public and private sectors with a major- 
ity of members being from the private sector. 
Nine directors shall be appointed from educational 
institutions, government (including executive and 
legislative branches), and non-profit institutions. 
Ten directors shall be appointed from private 
sector industry and technology fields, including but 
not limited to, pharmaceuticals and chemicals, 
environmental resources, food processing, furni- 
ture, information technologies, metals, paper, 
polymers, textiles, transportation and wood prod- 
ucts. All initial directors, except the Chair, shall 
serve a one year term, and until their successors 
are appointed. Thereafter, terms shall be stag- 
gered. One third of the directors shall have one- 
year terms; one third, two-year terms; and one 
third, three-year terms. Directors appointed or 
reappointed thereafter shall serve three-year terms. 



1153 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 



EXECUTIVE ORDERS 



B. The Governor shall appoint the Chair of the 
Board of Directors to serve an initial three-year 
term. 

C. Responsibilities of the Board of Directors 
shall be advisory in nature to the Governor and 
General Assembly. Their duties shall include: 

1 . Approval of policies, regulations, and by- 
laws that are necessary to form and 
operate the organization; 

2. Oversight of the policies and plans of the 
Alliance, including the strategic plan, 
studies of needs, gaps in service delivery, 
and performance standards; 

3. Implementation of procedures to insure 
cooperation with other parts of State 
government; 

4. Adoption of a proposal for staffing the 
Alliance; 

5. Approval of an operating plan for the 
Alliance; and 

6. Identification of other activities and 
priorities that should be undertaken by 
the Alliance. 

Section 6. Administration. 

The Alliance shall be funded from federal and 
state matching funds. For administrative purposes, 
the Alliance shall be housed in the Department of 
Administration, with further oversight from the 
Office of the Governor. 

This Executive Order shall become effective 
immediately. 

Done in Raleigh, North Carolina, this the 26th 
day of September, 1994. 



9:15 NORTH CAROLINA REGISTER November 1, 1994 1154 



IN ADDITION 



1 his Section contains public notices that are required to be published in the Register or have been 
approved by the Codifier of Rules for publication. 



DIVISION OF MEDICAL ASSISTANCE 

In accordance with Section 1923(c) of the Social Security Act, the Division of Medical Assistance is required 
to publish annually the name of each hospital qualifying for a payment adjustment under the Disproportionate 
Share Hospital Payment provision of the Act. Following is the list of hospitals qualifying for such payments 
and the amount of those payments from 1991 through 1994. 





ESTIMATED 










FY 6/30/91 


FYE 6/30/92 


FYE 6/30/93 


FYE 6/30/94 


PROVIDER 


DSH 


DSH 


DSH 


DSH 


NAME 


PAYMENTS 


PAYMENTS 


PAYMENTS 


PAYMENTS 


Alamance Memorial Hospital 





507,942 


538,161 


52,965 


Albemarle Hospital 





1,549,488 


568,787 


44,920 


Amos Cottage 


2,264.081 


4,470,615 


1,359,820 


561,806 


Annie Penn Memorial Hosp 








440,579 


33,853 


Anson County Hospital 





720,793 


124,071 


9,362 


Betsy Johnson Memorial 


759,545 


1,335,129 


513,697 


37,135 


Bladen County Hospital 


580,222 


781,448 


287,637 


28,640 


Broughton 


2,721,417 


4,700,347 


66,815,993 


142,028,136 


Brunswick County Hospital 


407,393 


1,966,303 


616,737 


114,453 


Cabarrus Memorial Hospital 








1,484,087 





Caldwell Memorial Hospital 





1,859,864 


441,518 


44,010 


Cape Fear Valley Hospital 


8,040,222 


16,752,322 


4,073,427 


618,440 


Carolinas Medical 


13,649,660 


29,452,342 


8,787,479 


1,757,287 


Charlotte Rehabilitation 


1,360,446 


3,105,199 


999,177 


89,844 


Charter Northridge 











12,214 


Cherry Hospital 


2,169,599 


4,205,676 


56,090,011 


103,142,642 


Chowan Hospital 


574,979 


1,546,413 


410,850 


64,430 


Cleveland Memorial Hospital 











48,552 


Columbus County Hospital 


1,579,334 


3,462,314 


837,142 


48,689 


Community General Hospital 








556,889 


44,788 


CPC Cedar Springs 


1,085,811 


1,852,683 





5,117 


Craven Regional Hospital 








1,429,784 


161,752 


Cumberland Hospital 


1,386,364 


5,999,530 


868,551 


58,572 


C.J. Harris Community Hospital 











43,222 


Dorothea Dix Hospital 


3,895,985 


12,668,950 


59,838,191 


107,258,635 


Duke Univ Medical Center 


11,209,937 


23,130,253 


6,382,148 


1,558,835 


Duplin General Hospital 


1,018,205 


2,019,918 


524,809 


69,829 


Forsyth Memorial Hospital 


6,849,382 


13,755,478 


3,424,938 


387,392 


Forsyth Stokes Mental Health C 








75,817 


69 


Gaston Memorial Hospital 


2,805,400 


7,310,168 


2,157,286 


176,752 


Good Hope Hospital 


1,017,271 


2,300,327 


424,312 


13,637 


Grace Hospital 











82,376 


Granville Medical Center 





897,884 


221,353 


18,633 


Halifax Memorial Hospital 


2,320,934 


5,388,100 


1,337,143 


103,829 


Haywood County Hospital 











30,436 


Heritage Hospital 


1,356,507 


2,859,746 


758,807 


137,611 


HSA Brynn Man- 


897,759 


3,482,765 


590,596 


58,587 


Johnston Memorial Hospital 


1,291,229 


2,347,886 


656,967 


50,847 


John Umstead Hospital 


6,421,108 


13,627,454 


65,714,833 


112,178,666 


Kings Mountain Hospital 











11,748 


Lenoir Memorial Hospital 


1,821,622 


4,469,750 


1,211,452 


112,206 


Lexington Memorial 











18,758 


Lincoln County Hospital 








309,761 


31,174 


Maria Parham Hospital 


788,314 


1,714,147 


420,642 


33,091 



1155 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 



IN ADDITION 



Martin General Hospital 


321,624 


744,231 


157,401 





McDowell Hospital 











15,271 


Memorial Mission Hospital 


4,283,158 


7,873,530 


2,544,118 


397,296 


Mon^omery Memorial Hospital 


270,043 


646,033 


153,462 


13,342 


Moore Regional Hospital 











192,883 


Moses Cone Memorial 


4,716,530 


11,793,098 


3,146,712 


497,897 


Murphy Medical Center 











11,701 


Nash General Hospital 





5,479,131 


1,559,117 


112,912 


New Hanover Memorial Hospital 


5,377,633 


9,993,197 


2,779,914 


430,223 


Northern Hospital of Surry 











27,612 


N.C. Baptist Hospital 


7,340,504 


15,553,520 


4,501,143 


1 ,074,708 


Onslow Memorial Hospital 


1,179,271 


2,915,735 


761,906 


74,855 


Park Ridge Hospital 


2,388,073 


4,749,102 


897,158 


152,866 


Pitt County Memorial 


9,193,549 


19,591,595 


5,166,058 


1,239,411 


Pungo District Hospital 





387,399 


85,857 





Richmond Memorial Hospital 


703,455 


1,823,067 


465,132 


47,351 


Roanoke Chowan Hospital 


1,317,348 


2,594,318 


764,179 


74,492 


Rowan Memorial Hospital 











74,455 


Rutherford County Hospital 











33,163 


Sampson County Memorial 





2,360,892 


513,000 


50,986 


Scotland Health Group 


1,274,757 


4,334,551 


1,049,969 


92,915 


Southeastern General 


3,323,229 


7,875,399 


1,955,182 


216,656 


Stanly Memorial Hospital 











31,976 


Ten Broeck 


1,328,446 


3,226,173 


507,864 





Thorns Rehabilitation 


1,556,901 


2,088,605 


363,620 


45,373 


Transylvania Community 


981,328 


41,304 


773,525 


156,018 


UNC Hospital 


10,879,861 


20,388,783 


6,308,471 


1,921,170 


Union Memorial Hospital 








557,794 


61,097 


Wake Medical System 


5,843,008 


13,848,086 


4,014,024 


739,665 


Washington County Hospital 


2,351,944 





103,839 





Wayne Memorial Hospital 


91,422 


5,732,314 


1,377,555 


107,005 


Western Carolina Center 


42,495 


80,605 


17,146 


3,561 


Wilkes Regional Hospital 








605,176 


51,930 


Wilson Memorial Hospital 


3,419,099 


6,446,428 


1,509,304 


103,985 


Youth Focus 


395,873 


1,423,513 


417,415 


144,007 


Total Records = 79 


146,852,276 


332,231,843 


334,349,493 


479,580,722 



9:15 



NORTH CAROLINA REGISTER 



November 1, 1994 



1156 



PROPOSED RULES 



TITLE 5 - DEPARTMENT OF 
CORRECTION 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Correction 
intends to repeal rules cited as 5 NCAC 2B .0101 , 
. 0106, . 0108; and adopt rules cited as 5 NCAC 2B 
.0109- .0114. 

1 he proposed effective date of this action is 
February 1, 1995. 

1 he public hearing will be conducted at 10:00 
a.m. on December 1 , 1994 at the Randall Building 
Conference Room, 831 West Morgan Street, 
Raleigh, NC 27603. 

Jxeason for Proposed Action: To repeal existing 
rules so rules can be consecutive, to adopt rules 
for earned time in accordance with the Structured 
Sentencing Act, and to adopt rules for good time, 
gain time, and meritorious time. 

(comment Procedures: Any person or organiza- 
tion desiring to make oral comments at the hearing 
should register to do so at the hearing. Statements 
will be limited to 10 minutes and one typewritten 
copy of any such statement should be submitted at 
the hearing. Any additional comments should be 
forwarded to the NC Division of Prisons, Attn. : 
Deborah L. McSwain, 831 West Morgan Street, 
Raleigh, NC 27603, by December 1, 1994. 

tLditor's Note: These Rules were filed as tempo- 
rary rules effective November 15, 1994 for a 
period of 180 days or until the permanent rule 
becomes effective, whichever is sooner. 

CHAPTER 2 - DIVISION OF PRISONS 

SUBCHAPTER 2B - INMATE CONDUCT 
RULES: DISCIPLINE 

SECTION .0100 - GOOD TIME AND GAIN 
TIME 

.0101 PURPOSE 

(a) Th e G e n e ral Statutes authorize the awarding 
of various sentenc e r e duction or e dits to selected 
inmato s . — Th e awarding of such cr e dits serves ao 
an ino e ntiv e for inmate s to b e productive and aot 



responsibly. — Effective and efficient allocation of 
good time and gain time awards is a critical elo 
ment for maintaining order, security, and appropri 
ate management of the inmate population. 

(b) This policy establi s hes a method of comput 
ing sentence reduction credits in the form of Good 
Time for s atisfactory behavior, — Gain Time for 
participation in work or program assignments, and 
meritoriou s time for behavior or specific acts not 

normally required of an inmate. This policy 

applie s to inmates confined in any facility in the 
Division of Prisons of the North Carolina Depart - 
ment of Correction, a jail, a regional confinement 
facility, a "County Farm", or any other local 
confinement facility established for the incarecra 
tion of convicted offender s . 



Statutory Authority G.S. 148-11; 148-13; 
15A-1340. 7. 

.0106 SPLIT SENTENCES 

Inmates serving an active pri s on term followed 
by a period of Special Probation are not eligible 
for Good Time, Gain Time or Meritoriou s Time. 
Inmates serving an active s entence following the 
revocation of Special Probation are eligible for 
Good Time, Gain Time, and Meritorious Time. 



Statutory Authority G. S. 
148-13. 



15A-1340.7; 148-11; 



.0108 CRIMINAL CONTEMPT 

Inmates — committed — to — custody — fer — criminal 
contempt arc not eligible for Good Time, Gain 
Time or Meritorious Time. 

Statutory Authority G.S. 5A-12(c); 148-13. 

.0109 SCOPE 

(a) The General Statutes authorize the awarding 
of various sentence reduction credits to selected 
inmates. The awarding of such credit shall serve 
as an incentive for inmates to be productive and 
act responsibly. Effective and efficient allocation 
of Good Time, Gain Time, and Earned Time 
awards is a critical element for maintaining order, 
security and appropriate management of inmate 
population. 

(b) This Rule establishes a method of computing 
sentence reduction credits in the form of Good 
Time for satisfactory behavior. Gain Time and 
Earned Time for participation in work or program 
assignments, and Meritorious Time for behavior or 
specific acts not normally required of an inmate. 
This Rule applies to inmates sentenced to the 



1157 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 



PROPOSED RULES 



custody of the Department of Correction for 
confinement in its facilities and sentenced jail 
prisoners. 

Statutory Authority G.S. 15A-1340.7; 
15A-1340.13; 15A-1 340.20; 15A-1355; 148-11; 
148-13. 

.0110 DEFINITIONS 

(a) Good Time - Good time is credit for good 
behavior at the rate of one day deducted from an 
eligible inmate's sentence for each day he spends 
in custody without a major infraction of prisoner 
conduct rules. 

(b) Gain Time ; Gain time is sentence reduction 
credit for participation in work and program 
activities awarded to eligible inmates sentenced for 
crimes committed prior to October j^ 1994. 

(c) Earned Time - Earned time is sentence 
reduction credit awarded to inmates for participa- 
tion in work and program activities and is a pplica- 
ble to inmates sentenced under the Structured 
Sentencing Act. 

(d) Eligible Inmates ; Inmates eligible to earn 
sentence reduction credits as outlined in Rules 
.0111, .0112. .0113 and .0114 of this Section- 
re) Meritorious Time - Meritorious time is 

sentence reduction credit awarded to eligible 
inmates for acts of exemplary conduct or work 
under extraordinary conditions. 

(f) Sentence Reduction Credits ; Time credits 
applied to an inmate's sentence that reduce the 
amount of time to be served. Included are good 
time, gain time, earned time and meritorious time. 

(g) Fair Sentencing Act : Also known as pre- 
sumptive sentencing, this sentencing act became 
effective for felonies committed on or after July f, 
1981 through September 30. 1994. 

fh) Structured Sentencing Act ; This sentencing 
act determines the sentence received for crimes, 
except impaired driving offenses, committed on or 
after October 1. 1994. 

ii) Inmate Misconduct - Inmate disobedience to 
a lawful order of the Department of Correction, its 
agents or employees. 

{]} Parole Eligibility Date 



The date, if any. 



provided to the Department of Correction by the 
Parole Commission as the date an inmate becomes 
eligible for parole. 

Statutory Authority G.S. 15 A-l 340.7; 15A-1355; 
148-11; 148-13. 

.0111 GOOD TIME 

{a} Eligible inmates shall be awarded Good 



Time at the rate of one day deducted from the 
inmate's prison or jail term for each day the 
inmate spends in custody without a major infrac- 
tion of prisoner conduct rules. 

(b) Forfeiture. Good Time shall be subject to 
forfeiture through disciplinary action for inmate 
misconduct. The amount of Good Time lost for 
inmate misconduct shall not exceed the amount of 
good time the inmate had earned to date. 

(c) Restoration of Forfeited Good Time. Good 
Time forfeited through disciplinary action may be 
restored by facility superintendents: area adminis- 
trators; institution heads; and, in the case of 
inmates confined to local confinement facilities, 
the sheriff or administrator of a regional confine- 
ment facility. Such restoration shall be based upon 
incidents of improved behavior by the inmate as 
determined by the judgment of the superintendent, 
facility administrator, or his designee. Restoration 
of lost Good Time cannot exceed the total time 
previously forfeited. 

(d) The following inmates are not eligible for 
good time as a sentence reduction credit: 

(1) Inmates sentenced under the Structured 
Sentencing Act; 

(2) Inmates committed to custody for con- 
tempt of court; 

(3) Health law violators; 

(4) Inmates sentenced under the Fair Sen- 
tencing Act for Class A and B felonies; 

(5) Inmates serving an active prison term 
followed by a period of Special Proba- 
tion; 

(6) Safekeepers; and 

(7) Presentence commitment for study 
defendants. 

Statutory Authority G.S. 5A-12(c); 15 A-l 340.7; 
130A-25; 148-11; 148-13. 

.0112 GAIN TIME 

{a} Gain Time. Eligible inmates who perform 
work, whether full-time, or part-time, or partici- 
pate in training programs which would assist their 
productive re-entry into the community, shall be 
allowed sentence reduction credits which shall be 
regulated as Gain Time L. U^ and HI. Gain Time 
shall be administered as follows: 

(1) Gain Time I. In addition to Good Time 
credits, eligible inmates who perform 
short-term work assignments or who 
participate in training programs, which 
are designated for Gain Time I and 
require a minimum of four hours of 
productive activity per day, for the 



9:15 



NORTH CAROLINA REGISTER 



November 1, 1994 



1158 



PROPOSED RULES 



£2} 



£3} 



number of days per month assigned to 
participate, shall receive credit at the 
rate of two days per month. 
Gain Time II. In addition to Good 
Time credits, eligible inmates who 
satisfactorily perform job assignments 
or who participate in training programs, 
which are designated for Gain Time II 
and require a minimum of six hours 
participation per day, for the number of 
days per month assigned to participate, 
shall receive credit at the rate of four 
days per month. 

Gain Time III. In addition to Good 
Time credits, eligible inmates perform- 
ing assigned jobs with requirements for 
special skills or specialized responsibili- 
ties such as specialized maintenance, 
cook, equipment operator, canteen 
operator, hospital technician, who 
participate in full-time training pro- 
grams, which are designated for Gain 
Time HI and require a minimum of six 
hours participation per day, for the 
number of days assigned to participate, 
shall receive credit at the rate of six 
days per month. 

(b) Forfeiture. Gain time shall not be subject to 
forfeiture for inmate misconduct. 

(c) The following inmates are not eligible for 
gain time as a sentence reduction credit: 

(1) Inmate's sentenced under the Structured 
Sentencing Act; 

(2) Inmates committed to custody for con- 
tempt of court; 

(3) Health law violators; 

(4) Inmates sentenced under the Fair Sen- 
tencing Act for Class A and B felonies; 

(5) Inmates serving an active prison term 
followed by a period of Special Proba- 
tion; 

(6) Safekeepers; and 

(7) Presentence commitment for study 
defendants. 

Statutory Authority G.S. 5A-12(c); 15A-1 340.7; 
130A-25; 148-11; 148-13. 

.0113 EARNED TIME 

£a) Award of Earned Time. Inmates sentenced 
to a term of years for a crime committed on or 
after October \± 1994. except those sentenced 
under G.S. 20-138.1. shall be allowed sentence 
reduction credits for work performed or for partic- 
ipation in training, education, or rehabilitation 



121 



programs and as provided in Rule .0114 of this 
Section. Total credit awards shall not exceed four 
days per month of incarceration for 
misdemeanants. Credit awards shall not reduce a 
felon's maximum term below the minimum term 
imposed. Earned Time reduction credit awards 
shall be awarded as Earned Time l± 11^ and HI or 
as Meritorious Time as provided in Rule .0114 of 
this Section. 

(1) Earned Time I. Eligible inmates who 
perform short-term work assignments 
or who participate in training programs, 
which are designated for Earned Time 

I and require a minimum of four hours 
of productive activity per day, for the 
number of days per month assigned to 
participate, shall receive two days per 
month deducted from the inmate's 
sentence. 

Earned Time II. Eligible inmates who 
satisfactorily perform job assignments 
or who participate in training programs, 
which are designated for Earned Time 

II and require a minimum of six hours 
participation per day, for the number of 
days per month assigned to participate, 
shall receive four days per month de- 
ducted from the inmate's sentence. 
Earned Time HI. Eligible inmates 
performing assigned jobs with require- 
ments for special skills or specialized 
responsibilities such as specialized 
maintenance, cook, equipment operator, 
canteen operator, hospital technician, or 
who participate in full-time training 
programs, which are designated for 
Earned Time III and require a minimum 
of six hours participation per day, for 
the number of days per month assigned 
to participate, shall receive six days per 
month deducted from the inmate's 
sentence. 

(b) Forfeiture of Earned Time. Earned Time 
shall be subject to forfeiture through disciplinary 
action for inmate misconduct. The amount of 
Earned Time lost for inmate misconduct shall not 
exceed the amount of time the inmate has earned 
to date. 

(c) Restoration of Forfeited Earned Time- 
Earned time forfeited through disciplinary action 
may be restored by facility superintendents; area 
administrators; institution heads: and, in the case 
of inmates confined to local confinement facilities, 
the sheriff or administrator of a regional confine- 
ment facility. Such restoration shall be based upon 



01 



1159 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 



PROPOSED RULES 



incidents of improved behavior by the inmate as 
determined by the judgment of the superintendent, 
facility administrator, or his designee. Restoration 
of lost Earned Time cannot exceed the total time 
previously forfeited. 

(d) The following inmates are not eligible for 
earned time as a sentence reduction credit: 

(1) Inmates committed to custody for con- 
tempt of court: 
Health law violators: 
Inmates serving an active prison term 
followed by a period of Special Proba- 
tion: 

Safekeepers: and 

Presentence commitment for study 
defendants. 



13} 



14} 
(5} 



Statutory Authority G. S. 
15A-1340.20; 15A-1355; 148-11. 



15 A-l 340.13; 



.0114 MERITORIOUS TIME 

(a) All inmates eligible for gain time or earned 
time are eligible for Meritorious Time sentence 
reduction credit awards. The Director of Prisons 
or his designee awards Meritorious Time sentence 
reduction credit to deserving inmates, as 
determined by his judgment. 

(b) Total credit awards to misdemeanants sen- 
tenced for crimes occurring on or after October 1 . 
1994, shall not exceed four days per month for the 
total number of months sentenced to incarceration. 
Credit awards for felons sentenced for crimes 
occurring on or after October J^ 1994, shall not 
reduce the felon's maximum term below the 
minimum term. 

(c) Credit awards to inmates eligible for gain 
time sentenced for crimes occurring prior to 
October i, 1994, shall not exceed 30 days per 
month for work performed nor 30 days for each 
act of exemplary conduct- 
ed) Consideration for Meritorious Time awards 

will be based upon the following categories: 
£1} Work Performed. 

(A) Overtime. Overtime is defined as 
satisfactory performance, as deter- 
mined in the judgment of the supervi- 
sor, in a job activity beyond a regular 
40-hour work week. Inmates 

assigned to the Work Release 
Program are not eligible to receive 
overtime based on a work release job. 
Adverse Working Conditions. 
Inmates are eligible for additional 
sentence reduction credit for work 
performed during inclement weather. 



IB} 



Inclement weather is defined as a chill 
factor of below 20 degrees Fahrenheit 
of temperature above 95 degrees 
Fahrenheit. Such conditions include 
rain, sleet, snow, or other unusual or 
abnormal circumstances as determined 
by the appropriate a pproving 
authority. 
(O Emergency Conditions. Inmates are 
eligible for additional sentence 
reduction credits for work performed 
during emergency conditions- 
Facility Superintendents will 
determine when an emergency 
condition exists. Such emergency 
conditions may include, but are not 
limited to. power failures, forest fires, 
work stoppages, riots, statewide 
emergencies established by the State 
Emergency responses network. 
(2) Exemplary Conduct. 

(A) Inmates are eligible for additional 
sentence reduction credit, not to 
exceed 30 days for each act, based 
upon the performance of an act which 
in the professional judgement of the 
Director of his designee is exemplary 
and merits the award of sentence 
reduction credits. 

(B) Inmates attaining an educational 
degree are eligible for additional 
sentence reduction credit at a rate of 
30 days per achievement. These 
awards are limited to successful 
completion of the General Educational 
Development Test (GED). receipt of 
a vocational trades license or trades 
certification based on successful 
completion of a formal program of 
vocational course work and 
supervised training, the attainment of 
an Associate of Arts or Science 
Degree (AA. AS), or the achievement 
of a Bachelor of Arts or Science 
Degree (BA. BS) or Graduate Degree 
(MA. MS, Ph.D., etc.). Inmates 
identified as special students by 
educational authorities may be 
awarded an additional five days per 
month for progress towards 
established educational goals in 
keeping with their individual 
education plans. 

Statutory Authority G.S. 15A-1355; 148-11; 



9:15 



NORTH CAROLINA REGISTER 



November 1, 1994 



1160 



PROPOSED RULES 



148-13. 

TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

[Sotice is hereby given in accordance with G.S. 
150B-21. 2 that the N. C. Medical Care Commission 
intends to amend rule cited as 10 NCAC 3H . 0221. 

1 he proposed effective date of this action is 
March 1, 1995. 

1 he public hearing will be conducted at 9:30 
a.m. on December 2, 1994 at the Council Build- 
ing, Room 201, 701 Barbour Drive, Raleigh, N.C. 
27603. 

lXeason for Proposed Action: To eliminate 
reference to the Internal Review Committee (IRC) 
in the rule due to a change in process. 

(comment Procedures: In order to allow the 
Commission sufficient time to review and evaluate 
your written comments, please submit your com- 
ments to Mr. Jackie R. Sheppard, APA Coordina- 
tor, DFS, PO Box 29530, Raleigh, NC 27626- 
0530, telephone (919) 733-2342 by November 
25th, but in no case later than the hearing on 
December 2, 1994. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3H - RULES FOR THE 
LICENSING OF NURSING HOMES 

SECTION .0200 - LICENSURE 

.0221 ADMINISTRATIVE PENALTY 
DETERMINATION PROCESS 



{B 



-ef- 



(a) — Th e surv e yor shall id e ntify ar e as ot non 
oompliano e — r e sulting — from — as — investigation — ef 
survey whioh may b e violations of pati e nts' righto 
oontain e d in G.S. 131E 117 or rules oontainod in 
this Subchapt e r. — Th e ar e as of non oompliano e 
shall b e docum e nted by the surveyor and a N e ga 
tivo Aotion Proposal — submitted to th e Internal 
R e view Committe e . 

{b) — Th e Int e rnal R e vi e w Committe e shall b e 
oompriB e d of three m e mbers: 

fB Th e assistant ohi e f of th e Lic e nsur e 

S e ction, or a p e r s on d e signated by th e 
ohi e f of th e Lic e nsur e S e ction, who 



s hall s erve as chairman; 

{3} The head of the Complaints Invoetiga 

tion Branch, if the propo s al i s the result 
of a health care s urvey; or the head of 
the Health Care Facilities Branch, if the 
proposal i s the result of a complaint 
investigation; or a person designated by 
the chief of the Licensure Section; and 

03 A third party s elected by the chief of 

the Licensure Section. 
(c) The Department shall notify the licensee by 
certified mail within 10 working days from the 



ttrae — the proposal — is — received by the Internal 



Review Committee that an administrative penalty 
i s being considered. 

{d) — The licensee s hall have 10 working day s 
from receipt of the notification to provide the 
Department — aay — additional — written informatio e 
relating to the proposed administrative penalty. 
Upon request by the licensee, the Department s hall 
grant the licensee an extension of up to 30 day s to 
submit additional written information relating to 
the proposed administrative action. — The licensee 
shall have five working day s from receipt of the 
notification to advise the Department as to whether 
the licensee, an authorized representative or both 
plan to meet with the Internal Review Committee. 

(c) If the licen s ee choo s e s to attend the meeting 
as provided in Paragraph (d) of this Rule, a sur 
vcyor or a representative of the branch which 
conducted the investigation or survey shall attend 
the Interna] — Review Committee meeting when 
survey schedules permit. — The Department s hall 
notify the Divi s ion of Aging of the licensee' s plans 
to meet with the Committee or any change in the 
date or time of the meeting. If the licensee choos ■ 
cs to attend the meeting, the agency that conducted 
the survey or investigation s hall be re s ponsible for 
notifying the complainant, if any. — The complain 
ant, if any, may attend the meeting relating to hi s 
or her complaint. 

(f) The Internal Review Committee s hall review 
aH — Negative — Aotion — Proposals, — aay — s upporting 
evidence, and any additional information provided 
by the licensee that may have a bearing on the 
proposal — sueb — as — documentation — not available 
during the investigation or survey, action taken to 
correct the violation and plans to prevent the 
violation from recurring. 

(g) There shall be no taking of sworn testimony 
nor cro s s examination of anyone during the course 
of Internal Review Committee meeting s . 

(h) — Time shall be allowed during the Internal 
Review Committee meeting s for individual pro s cn 
tations, the total for which s hall normally be one 



1161 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 



PROPOSED RULES 



hour for each facility whore the violations took 

place, but shall not exceed two hours. The 

amount of time allowed, up to two hours, shall be 
at the discretion of the Internal Review Committee 
chair. — The order in which presenters shall speak 
and length of presentation s shall al s o be at the 
discretion of the chair. 

(i) — If it is determined that the licensee has 
violated applicable rulca or statutes, the Internal 
Review Committee shall recommend an admini s 
trativc penalty type and amount for each violation 
pursuant to G.S. 131E 129. The Department 9 hall 
notify — the — licensee — by — certified — maH — of the 
Committee's decision within five working days 
following the Internal Review Committee meeting. 

£j) — If the recommended penalty is classified as 
Type B but is not a repeat violation (as defined by 
GrS: — 13 IE 129), the licen s ee may accept the 
recommendation and notify the Department by 
certified mail within five working day s following 
receipt of the recommendation. — If the penalty is 
accepted, the licensee has 60 days from receipt of 
the recommendation to pay the penalty. 

{k) — If the recommended penalty is a Type A 
violation; i s a Typo B violation that has been 
previously cited during the previous 12 month s or 
within the time period of the previou s licen s ure 
inspection, which ever time period i s longer; or i s 
a Type B violation as provided in Paragraph (j) of 
this Rule but is not accepted by the licensee, the 
Internal Review Committee shall forward to the 

Penalty Review Committee the penalty 

recommendation, — the — rationale — fer — the 
recommendation and all information reviewed by 
the Internal Review Committee. 

$) — The Penalty Review Committee may agree 
with or recommend ehanges to the Internal Review 



Committee' s recommendations. 



4* the 



recommendations are different from those of the 
Internal Review Committee, the Department s hall 
notify the licensee the day of the Penalty Review 
Committee meeting. 

f») — Recommendations by the Penalty Review 
Committee shall be documented and forwarded to 
the — Chief of Licensure — whe — shaH — have — five 
working days from the date of the Penalty Review 
Committee — meeting — te — determin e — and — impo s e 
administrative — penalties — fef — eaeh — violation — as 
provided by G.S. 13 IE 129 and notify the licen s ee 
by certified mail. 

(n) The licensee shall have 60 days from receipt 
of the — notification — te — pay — the — assessment — as 
provided by G.S. 13 IE 129 or 30 day s to appeal 
the decision as provided by G.S. 1S0B 22. — The 
Department shall notify the Attorney Gcncral' 9 



Office of any outstanding asse ss ments. 

(a) The surveyor or complaints investigator shall 
identify and notify the facility of areas of 
noncompliance resulting from a survey or 
investigation which may be violations of patients' 
rights contained in G.S. 131E-117 or rules 
contained in this Subchapter. The facility may 
submit additional written information which was 
not available at the time of the visit for evaluation 
by the surveyor, investigator, or branch head. 
The surveyor, investigator or branch head shall 
notify the facility if a decision is made, based on 
information received, not to recommend a penalty. 
If the decision is to recommend a penalty, the 
surveyor or investigator shall complete a negative 
action proposal and recommend a penalty, by Type 
(A or Bli to the branch head who shall make a 
decision on type and amount of penalty to be 
submitted for consideration. The negative action 
proposal shall then be submitted to the 
administrative penalty monitor for processing. 

(b) The Department shall notify the licensee by 
certified mail within 10 working days from the 
time the proposal is received by the administrative 
penalty monitor that an administrative penalty is 
being considered. 

(c) The licensee shall have 10 working days 
from receipt of the notification to provide the 
Department any additional written information 
relating to the proposed administrative penalty. 
Upon request by the licensee, the Department shall 
grant the licensee an extension of ug to 30 days to 
submit additional written information relating to 
the proposed administrative penalty. 

(d) If the penalty recommendation is classified 
as a Type B violation and is not a repeat violation 
as defined by G.S. 131E-129. the licensee shall be 
notified of the type and amount of penalty and may 
accept the recommendation instead of review by 
the Penalty Review Committee. If the penalty 
recommendation is accepted, the licensee must 
notify the administrative penalty monitor by 
certified mail within five working days following 
receipt of the recommendation. The licensee must 
include payment of the penalty with the 
notification. If payment is not received, the 
recommendation shall be forwarded to the Penalty 
Review Committee. 

(e) The Penalty Review Committee must review 
a recommended penalty when: it is a Type A 
violation; is a Type B violation that has been 
previously cited during the previous 12 months or 
within the time period of the previous licensure 
inspection, whichever time period is longer: or is 
a Type B violation as provided in Paragraph (d) of 



9:15 



NORTH CAROLINA REGISTER 



November 1, 1994 



1162 



PROPOSED RULES 



this Rule which is not accepted by the licensee. 

(f) A subcommittee of the Penalty Review 
Committee consisting of four committee members 
assigned by the Penalty Review Committee chair 
shall meet to initially review non-repeat Type B 
violations. The Penalty Review Committee chair 
shall appoint the subcommittee chair and shall be 
an ex-officio member of the Penalty Review 
Committee subcommittee. The surveyor or 
investigator recommending the penalty or a branch 
representative shall attend the meeting when work 
schedules permit. Providers, complainants, 
affected parties and any member of the public may 
also attend the meeting. The administrative penalty 
monitor shall be responsible for informing parties 
of these public meetings. 

(g) Time shall be allowed during the Penalty 
Review Committee subcommittee meetings for 
individual presentations regarding proposed 
penalties. The total time allowed for presentations 
regarding each facility, the order in which 
presenters shall speak and length of presentations 
shall be determined by the Penalty Review 
Committee subcommittee chair. 

fh) The administrative penalty monitor shall 
have five working days from the meeting date to 
notify the facility and involved parties of penalty 
recommendations made by the Penalty Review 
Committee subcommittee. These recommendations 
including the vote of the Penalty Review 
Committee subcommittee shall be submitted for 
review by the fuU Penalty Review Committee at a 
meeting scheduled for the following month. 

(i) The full Penalty Review Committee shall 
consider Type A violations, repeat Type B 
violations and non-repeat Type B violations 
referred by the Penalty Review Committee 
subcommittee. Providers, complainants, affected 
parties and any member of the public may attend 
full Penalty Review Committee meetings. Upon 
written request of any affected party showing good 
cause, the Department may grant a delay until the 
following month for Penalty Review Committee 
review. The Penalty Review Committee chair may 
ask questions of any of these persons, as 
resources, during the meeting. Time shall be 
allowed during the meeting for individual 
presentations which provide pertinent additional 
information, normally not to exceed 10 minutes in 
length for each proponent. The order in which 
presenters speak and the length of each 
presentation shall be at the discretion of the 
Penalty Review Committee chair. 

(j) The Penalty Review Committee and Penalty 
Review Committee subcommittee shall have for 



review the entire record relating to the penalty 
recommendation. The Penalty Review Committee 
and Penalty Review Committee subcommittee shall 



make recommendations after review of negative 
action proposals, any supporting evidence, and any 
additional information submitted by the licensee as 
described in Paragraph (c) of this Rule that may 
have a bearing on the proposal such as documenta- 
tion not available during the investigation or 
survey, action taken to correct the violation and 
plans to prevent the violation from recurring. 

(TO There shall be no taking of sworn testimony 
nor cross-examination of anyone during the course 
of the Penalty Review Committee subcommittee or 
full Penalty Review Committee meetings. 

ID If the Penalty Review Committee determines 
that the licensee has violated a pplicable rules or 
statutes, the Penalty Review Committee shall 



recommend an administrative penalty type and 
amount for each violation pursuant to G.S. 131E- 
129. Recommendations for nursing home penalties 



shall be submitted to the Chief of the Medical 
Facilities Licensure Section who shall have five 
working days from the date of the Penalty Review 
Committee meeting to determine and impose 
administrative penalties for each violation and 
notify the licensee by certified mail- 
Cm) The licensee shall have 60 days from receipt 
of the notification to pay the penalty as provided 
by G.S. 131E-129 or must file a petition for 
contested case with the Office of Administrative 
Hearings within 30 days of the mailing of the 
notice of penalty imposition as provided by G.S. 
131E-2. 

Statutory Authority G.S. 131D-34; 131E-104; 
143B-165. 

****************** 

l\otice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. Medical Care Commission 
intends to amend rules cited as 10 NCAC 3T 
.0102, .0402, .0901, .1102 and .1109. 

1 he proposed effective date of this action is 
February 1, 1995. 

1 he public hearing will be conducted at 9:30 
a.m. on December 2, 1994 at the Council Build- 
ing, Room 201, 701 Barbour Drive, Raleigh, N.C 
27603. 



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Reason for Proposed Action: To change staffing 
and physical plant requirements resulting from 
rules workgroup. 

Comment Procedures: In order to allow the 
Commission sufficient time to review and evaluate 
your written comments, please submit your com- 
ments to Mr. Jackie R. Sheppard, APA Coordina- 
tor, DFS, PO Box 29530, Raleigh, NC 27626- 
0530, telephone (919) 733-2342 by November 
25th, but in no case later than the hearing on 
December 2, 1994. 

SUBCHAPTER 3T - HOSPICE 
LICENSING RULES 

SECTION .0100 - GENERAL 
INFORMATION 

.0102 DEFINITIONS 

In addition to the definitions set forth in G.S. 
131E-201 the following definitions shall wHJ apply 
throughout this Subchapter along with th e follow 
wg: 

(1) "Attending Physician" means the physi- 
cian licensed to practice medicine in 
North Carolina who is identified by the 
patient at the time of hospice admission 
as having the most significant role in the 
determination and delivery of medical 
care for the patient. 

(2) "Care Plan" means the proposed method 
developed in writing by the interdisciplin- 
ary care team through which the hospice 
seeks to provide services which meet the 
patient's and family's medical, psychoso- 
cial and spiritual needs. 

(3) "Clergy Member" means an individual 
who has received a degree from an ac- 
credited theological school and has ful- 
filled appropriate denominational semi- 
nary requirements; or an individual who, 
by ordination or authorization from the 
individual's denomination, has been 
approved to function in a pastoral capaci- 
ty. The clergy member must have expe- 
rience in pastoral duties and be capable 
of providing for hospice patients' spiritu- 
al needs. 

(4) "Coordinator of Volunteers" means an 
individual on the hospice staff who coor- 
dinates and supervises the activities of all 
volunteers. 



(5) "Dietary Counseling" means counseling 
given by a qualified dietitianr-ene who 
meets the qualifications established by the 
Committee on Professional Registration 
of the American Dietetic Association. 

(6) "Director" means the person having 
administrative responsibility for the oper- 
ation of the hospice. 

(7) "Governing Body" means the group of 
persons responsible for overseeing the 
operations of the hospice, specifically for 
the development and monitoring of poli- 
cies and procedures related to all aspects 
of the hospice program. The governing 
body ensures that all services provided 
are consistent with accepted standards of 
hospice practice. 

(8) "Home Health Aide" means an individual 
who is a qualified nurse aide listed on the 
nurse Aide Registry, and who performs 
personal care and other duties to hospice 
patients in a private home. 

(9) "Hospice caregiver" means an individual 
on the hospice staff who has completed 
hospice caregiver training as defined in 
10 NCAC 3T .0402 and is assigned to a 
hospice residential facility. 

(10) (9)"Hospice Inpatient Unit" means a 
freestanding licensed facility providing 
inpatient hospice care or a designated 
unit in a licensed facility which has a 
contractual agreement with a licensed 
hospice for the provision of hospice 
inpatient care. 

(11) fW)"Hospice Residence" is a home li- 
censed to provide hospice care to no 
more than six hospice residents. 

(12) f4+)"Hospice Staff' means personnel 
working under the jurisdiction of a hos- 
pice, either salaried employee or volun- 
teer. 

(13) fi5)"Informed Consent" means the agree- 
ment to receive hospice care made by the 
patient and family which specifies in 
writing the type of care and services to 
be provided. The informed consent form 
is signed by the patient prior to service. 
If the patient's medical condition is such 
that a signature cannot be obtained, a 
signature is obtained from the individual 
having legal guardianship, applicable 
power of attorney, or the family member 
or individual assuming the responsibility 
of primary caregiver. 

(14) {4-3) "Inpatient Beds" means beds provid- 



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1164 



PROPOSED RULES 



ed for use by hospice patients, for medi- 
cal management of symptoms or for 
respite care. 

(15) (44)"Licensed Practical Nurse" means a 
nurse holding a valid current license as 
required by G.S. 90. Article 9A. North 
Carolina Statute. 

(16) ft§)"Medical Director" means a physi- 
cian who directs the medical aspects of 
the hospice's patient care program. 

(17) {+6)"Nurse Aide" means an individual 
who is qualified authorized to provide 
nursing care under the supervision of a 
licensed nurse, has completed a training 
and competency evaluation program or 
competency evaluation program and is 
listed on the Nurse Aide Registry , North 
Carolina Board of Nursing as set forth in 
21 NCAC 36 .0 4 00 at the Division of 
Facility Services . 

(18) {47) "Occupational Therapist" means an 
individual who is registered as such with 
the American Occupational Therapy 
Association. 

(19) {+8)" Patient and Family Care Coordina- 
tor" means a registered nurse designated 
by the hospice to coordinate the provision 
of hospice services for each patient and 
family. 

(20) (+9)"Pharmacist" means an individual 
duly licensed to practice pharmacy in 
North Carolina. 

(21) {20)" Physical Therapist" means an indi- 
vidual holding a valid current license as 
required by G.S. 90, Article 18B. Nerth 
Carolina Statute. 

(22) {24)"Physician" means an individual 
licensed to practice medicine in North 
Carolina. 

(23) {23)"Primary Caregiver" means the 
family member or other person who 
assumes the overall responsibility for the 
care of the patient in the home. 

(24) (24) "Registered Nurse" means a nurse 
holding a valid current license as 
required by G.S. 90, Article 9A. North 
Carolina Statute. 

(25) {24)"Respite Care" means care provided 
to a patient for the purpose of temporary 
relief to family members or others caring 
for the patient at home. 

(26) (2-5)"Social Worker" means an individual 
holding a master's degree or a bachelor's 
degree in social work from a school 
accredited by the Council of Social Work 



Education with experience in a health 
related field and who is capable of pro- 
viding for hospice patients' and families' 
psychosocial needs. An individual hold- 
ing a bachelor's or an advanced degree in 
psychology, counseling or psychiatric 
nursing may also function in this capacity 
if the same criteria are met. 

(27) {36)"Speech Therapist" means an individ- 
ual holding a valid current license as 
required by GJL 90^ Article 22. Neftb 
Carolina Statute. 

(28) {37)"Volunteer" means an individual, 
who has received appropriate orientation 
and training consistent with acceptable 
standards of hospice philosophy and 
practice. 

Statutory Authority G.S. 131E-202. 

SECTION .0400 - PERSONNEL 

.0402 INSERVICE EDUCATION 
AND TRAINING 

(a) Written policies shall be established and 
implemented which include orientation, hospice 
caregiver training, volunteer training and inservice 
education for all hospice staff. Records on the 
content of volunteer training sessions and on the 
subject of inservice shall be maintained by the 
hospice; attendance records for both shall be kept. 

(b) Training for hospice staff providing direct 
patient and family services shall include, but not 
be limited to, the following: 

(1) hospice philosophy and concepts of 



cares 



(2) 



(3) 
(4) 
(5) 
(6) 
(7) 



physiological and psychological aspects 

of terminal illness^ 

symptom managements 

family dynamics and copings 

communication and listenings 

emergency procedure.; 

procedure for death occurring in the 

homes 

(8) grief and bereavement-^-afidj and 

(9) documentation and record keeping. 

(c) In addition to the training described in 
Paragraph (b) of this Rule, the following additional 
training shall be provided to hospice caregivers 
assigned to a hospice residential facility: 

(1) training specific to the types of medica- 
tions being administered when assisting 
the patient with self administration of 
medications and provision of personal 
care from a curriculum a pproved by the 



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PROPOSED RULES 



Division of Facility Services: 

(2) orientation and instruction specific to 
the care needs of individual patients in 
the hospice residential facility; and 

(3) notification criteria for licensed nursing 
staff as defined in the agency policies 
and procedures. 

Statutory Authority G. S. 131E-202. 

SECTION .0900 - MEDICAL RECORDS 

.0901 CONTENT OF MEDICAL 
RECORD 

(a) The hospice shall have policies and 
procedures implemented to ensure that a medical 
record is maintained for each patient and is made 
available for licensure inspection unless the 
patient, who has been so informed, objects to such 
inspection in writing. If the patient is not able to 
approve or disapprove the release of such 
information for inspection, the patient's legal 
guardian may make the decision and so indicate in 
writing. 

(b) The record shall contain pertinent past and 
current medical and social data and include the 
following information: 

(1) identification data (name, address, 
telephone, date of birth, sex, marital 
status); 

(2) name of next of kin or legal guardian; 

(3) names of other family members; 

(4) religious preference and church 
affiliation and clergy if appropriate; 

(5) diagnosis, as determined by attending 
physician; 

(6) authorization from attending physician 
for hospice care; 

(7) source of referral; 

(8) initial assessments; 

(9) consent for care form; 

(10) physician's orders for drugs, treatments 
and other special care, diet, activity and 
other specific therapy services; 

(11) care plan; 

(12) clinical notes containing a record of all 
professional services provided directly 
or by contract with entries signed by 
the individual providing the services; 

(13) home health aide and hospice caregiver 
notes describing activities performed 
and pertinent observations: 

(14) {±3)volunteer notes, as applicable, 
indicating type of contact, activities 
performed and time spent; 



(15) fW)discharge summary to include 
services provided, or reason for 
discharge if services are terminated 
prior to the death of the patient; and 

(16) f^S)bereavement counseling notes. 

Statutory Authority G.S. 131E-202. 

SECTION .1100 - HOSPICE 
RESIDENTIAL 

.1102 HOSPICE RESIDENCE 
STAFFING 

(a) There shall be trained hospice caregivers on 
duty 24 hours a day, a licensed nurse on duty in 
each residence 2 4 hours a day. — If the nur s e ia a 
licen s ed practical nurse, a A registered nurse shall 
be continuously available, for consultation and 
direct participation in nursing care and — fef 
supervision of the licensed practical nur s e . The 
registered nurse shall be on site when required to 
perform duties specified in the Nurse Practice Act. 
Supervision shall be provided by the patient and 
family care coordinator who may delegate this 
responsibility to the registered nurse on call. 

(b) There shall be at least two staff on duty at 
all times. 

(c) All staff, including volunteers, counselors 
and clergy, shall complete training specific to 
dealing with the terminally ill and their families. 

(d) Nurse aides employed to provide direct care 
shall be supervised by licensed nurses. 

(e) Interdisciplinary team services shall be 
provided in accordance with the hospice plan of 
care. 

Statutory Authority G.S. 131E-202. 

.1109 RESDDENT CARE AREAS 

(a) Resident rooms shall meet the following 
requirements: 

(1) There shall be private or semiprivate 
roomsTj 

(2) Infants and small children shall not be 
assigned to a room with an adult 
resident unless requested by residents 
and familiesr; 

(3) Each resident room shall contain at 
least a bed, a mattress protected by 
waterproof material, mattress pad x an4 
pillow, and a chair-r; 

(4) Each resident room shall have a 
minimum of 48 cubic feet of closet 
space or wardrobe for clothing and 
personal belongings that provides 



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1166 



PROPOSED RULES 



security and privacy for each resident. 
Each resident room shall be equipped 
with a towel rack for each individual^ 

(5) Each resident bedroom shall: 

(A) be located at or above grade levels 

(B) have provisions to ensure visual 
privacy for treatment or visiting; 

{€-) — have a direct entry from the corridor. 

(6) Artificial lighting shall be provided 
sufficient for treatment and 
non-treatment needs, 50 foot candles 
for treatment, 35 foot candles for 
non-treatment areas-r^ and 

(7) A room where access is through a 
bathroom, kitchen or another bedroom 
will not be approved for a resident's 
bedroom. 

Bathrooms shall meet the following 



(b) 

requirements: 

(1) Bathroom facilities shall be 
conveniently accessible to resident 
rooms and shall include a tub, lavatory 
and water clo s et . One bathroom may 
serve up to four residents and staff. 
Minimum size of any bathroom shall be 
18 square feet. The door shall be at 
least 32 inches wide. 

(2) The bathroom shall be furnished with 
the following: 

(A) toilet with grab bars; 

(B) lavatory with four inch wrist blade 
controls; 

(C) mirror; and 

(D) soap, paper towel dispensers, and 
waste paper receptacle with a 
removable impervious liner-^ 

(E) water closet: and 

(F) tub or shower. 

(c) Space shall be provided for: 

(1) charting, storage of supplies and 
personal effects of staffs 

(2) the storage of resident care equipment-?.; 

(3) housekeeping equipment and cleaning 
supplies-?; 

(4) storage of test reagents and disinfectants 
distinct from medication-^ 

(5) locked medication storage and 
preparation-^ and 

(6) drugs requiring refrigeration. They 
may be stored in a separate locked box 
in the refrigerator or in a lockable 
drug-only refrigerator, capable of 
maintaining a temperature range of 36 
degrees F (2 degrees C) to 46 degrees 
F (8 degrees C). The storage and 



accountability of controlled substances 
shall be in accordance with the North 
Carolina Controlled Substances Act, 
Article 5 of Chapter 90 of the General 
Statutes. 

(d) Kitchen and dining areas shall have: 

(1) a refrigeratory^ 

(2) a cooking unit ventilated in an 
acceptable manner 

(3) a 42" minimum double-compartment 
sink and domestic dishwashing machine 
capable of sanitizing dishes with 160 
degrees F. waterji 

(4) dining space of 20 square feet per 
resident-^ and 

(5) adequate storage space for 
non-perishables. 

(e) Other areas shall include: 

(1) a minimum of 150 square feet exclusive 
of corridor traffic for recreational and 
social activities^ 

(2) There s hall be an audible and accessible 
call system furnished in each resident's 
room and bathroom^ and 

(3) Each facility shall provide heating and 
air cooling equipment to maintain a 
comfort range between 68 degrees and 
80 degrees Fahrenheit. 

Statutory Authority G.S. 131E-202. 

****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Social Services Commission 
intends to amend rules cited as 10 NCAC 411 
.0305 and .0306. 

1 he proposed effective date of this action is 
February 1, 1995. 

1 he public hearing will be conducted at 10:00 
a.m. on December 7, 1994 at the Albemarle Bldg. , 
Room 943-2, 325 N. Salisbury Street, Raleigh, 
North Carolina 27603. 

Keason for Proposed Action: 
10 NCAC 411 .0305 - Proposed for amendment in 
order to reduce unnecessary expenditure of agency 
time in checking the Central Registry for a state- 
wide history of child protective services reports. 
The amendment specifically eliminates the require- 
ment for rechecking the Registry in two circum- 



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9:15 



PROPOSED RULES 



stances and allows agency discretion in other 
situations that may make checks unnecessary. 
10 NCAC 411 .0306 - The proposed amendment 
provides for agency discretion in those situations 
for which the development of an intervention plan 
and the provision of services by the agency are not 
needed to ensure adequate care for the victim child 
or children. 

(comment Procedures: Comments may be pre- 
sented in writing any time before or at the public 
hearing or orally at the hearing. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Any person may request copies of 
these rules by calling or writing to Shames e 
Ransome, Division of Social Services, 325 N. 
Salisbury Street, Raleigh, North Carolina 27603, 
telephone: (919) 733-3055. 

CHAPTER 41 - CHILDREN'S 
SERVICES 

SUBCHAPTER 411 - PROTECTIVE 
SERVICES 

SECTION .0300 - CHILD PROTECTIVE 
SERVICES: GENERAL 

.0305 CONDUCTING A THOROUGH 
INVESTIGATION 

(a) The county director shall make a thorough 
investigation to assess: 

(1) whether the specific environment in 
which the child or children is found 
meets the child's or children's need for 
care and protection; and 

(2) facts regarding the existence of abuse, 
neglect, or dependency; and 

(3) the nature and extent of any injury or 
condition resulting from abuse, neglect, 
or dependency; and 

(4) the risk of harm to and need for protec- 
tion of the child or children. 

(b) When the county director receives a report 
of suspected abuse, neglect, or dependency, the 
county director shall check the county agency's 
records and the North Carolina Central Registry of 
child abuse, neglect, and dependency reports to 
ascertain if any previous reports of abuse, neglect, 
or dependency have been made concerning the 
alleged victim child or children. Central Registry 
checks are not necessary when the agency has 
conducted such a check within the previous 60 
days or when the agency is providing continuous 



child protective services to the family. 

(c) Face-to-face contact with other children 
residing in the home shall be made as soon as 
possible, but no later than seven working days 
after the initiation of the investigation, unless there 
is documentation in the case record to explain why 
such contact was not made. 

(d) There shall be a face-to-face interview with 
any parent or caretaker with whom the victim child 
or children reside, unless there is documentation in 
the case record to explain why such an interview 
was not conducted. The parent or caretaker shall 
be interviewed on the same day as the victim child 
or children unless there is documentation in the 
case record to explain why such interviews were 
not conducted. 

(e) The investigation shall include a visit to the 
place where the child or children reside. 

(f) There shall be a face-to-face interview with 
the alleged perpetrator or perpetrators unless there 
is documentation to explain why such an interview 
was not conducted. 

(g) Any persons identified at the time the report 
was accepted for investigation as having informa- 
tion concerning the condition of the child or 
children shall be interviewed in order to obtain any 
information relevant to the investigation unless 
there is documentation in the case record to ex- 
plain why such interviews were not conducted. 

(h) When additional information is necessary to 
complete a thorough investigation, information 
from the following sources shall be obtained and 
utilized: 

(1) Professionals or staff at an out-of-home 
care setting having relevant knowledge 
pertaining to the alleged abuse, neglect, 
or dependency; 

(2) Other persons living in the household 
or attending or residing in the 
out-of-home care setting; 

(3) Any other source having relevant 
knowledge pertaining to the alleged 
abuse, neglect, or dependency; 

(4) Records; i.e., school, medical, mental 
health, or incident reports in an 
out-of-home care setting. 

(i) The county director shall exercise discretion 
in the selection of collateral sources in order to 
protect the family's or out-of-home care setting's 
right to privacy and the confidentiality of the 
report. 

(j) Conducting a thorough investigation as 
outlined in Paragraph (a) of this Rule when the 
alleged abuse, neglect, or dependency occurred in 
an institution shall include the following: 



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1168 



PROPOSED RULES 



(1) A discussion of the allegation with the 
individual who has on-site 
administrative responsibility for the 
institution; 

(2) A discussion of the procedure to be 
followed during the investigation; 

(3) The utilization of resources within and 
without the institution as needed and 
appropriate; 

(4) A discussion of the findings with the 
Administrator of the institution which 
shall be confirmed in writing by the 
county director and shall be held 
confidential by all parties as outlined in 
10 NCAC 411 .0313, of this 
Subchapter. 

Statutory Authority G.S. 7A-544; 143B-153. 

.0306 WHEN ABUSE, NEGLECT 

OR DEPENDENCY IS FOUND 

(a) When a thorough investigation reveals the 
presence of abuse, neglect, or dependency, the 
county director shall notify the following persons 
or agencies of the case finding: 

(1) any parent or caretaker who was 
alleged to have abused or neglected the 
child or children; 

(2) any parent or other individual with 
whom the child or children resided at 
the time the county director initiated the 
investigation; and 

(3) any agency with whom the court has 
vested legal custody. 

Notification shall be in writing, and within five 
working days of the case decision. If the county 
director is unable to contact a parent, caretaker, or 
perpetrator, documentation of reasonable efforts to 
locate that person must be included in the case 
record. 

(b) The county director shall conduct a 
structured risk assessment of every family in which 
abuse or neglect is substantiated. This risk 
assessment shall be completed within seven 
working days following a case finding of abuse or 
neglect and the findings of the risk assessment 
shall be used to evaluate the need for services and 
to develop an intervention plan. 

(c) The director shall evaluate the 
appropriateness of using the formal risk assessment 
process in individual substantiated dependency 
cases. Examples of substantiated dependency 
cases that are appropriate for formal risk 
assessment are cases involving both neglect and 
dependency, and cases involving dependent 



children who are being considered for reunification 
with their family. 

(d) In all cases in which abuse, neglect, or 
dependency is found, the county director shall 
determine whether protective services are needed 
and, if so^ shall develop, implement, and oversee 
an intervention plan to ensure that there is ade- 
quate care for the victim child or children. The 
intervention plan shall: 

(1) be based on the findings of the struc- 
tured risk assessment when such a risk 
assessment was determined to be re- 
quired according to the instructions 
provided by the Department of Human 
Resources, Division of Social Services; 
and 

(2) contain goals representing the desired 
outcome toward which all case activi- 
ties shall be directed; and 

(3) contain objectives that: 

(A) describe specific desired outcomes, 

(B) are measurable, 

(C) identify necessary behavior changes, 

(D) are based on an assessment of the 
specific needs of the child or children 
and family, 

(E) are time-limited, and 

(F) are mutually accepted by the county 
director and the client; 

(4) specify all the activities needed to 
achieve each stated objective; 

(5) have clearly stated consequences that 
will result from either successfully 
following the plan or not meeting the 
goals and objectives specified in the 
plan; and 

(6) shall include petitioning for the removal 
of the child or children from the home 
and placing the child or children in 
appropriate care when protection cannot 
be initiated or continued in the child's 
or children's own home. 

(e) For those cases that require the completion 
of a structured risk assessment, the risk assessment 
tool shall be completed at the following points in 
the case: 

(1) within seven working days following a 
case finding of abuse, neglect, or de- 
pendency, and prior to the development 
of the intervention plan and prior to the 
provision of treatment or supportive 
services; and 

(2) as part of the six-month review and the 
annual review, if the case remains open 
for services; and 



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9:15 



PROPOSED RULES 



(3) when the county director is considering 
taking court action in relation to the 
case; and 

(4) when the county director is considering 
closing the case for services; and if the 
director decides to close the case, the 
case must be closed within 30 days 
following completion of the risk assess- 
ment; and 

(5) at other times, at the county director's 
discretion, when conducting a struc- 
tured risk assessment would help the 
director in making decisions concerning 
an open child protective services case. 

(f) When an investigation leads a county director 
to find evidence that a child may have been abused 
or may have been physically harmed in violation 
of a criminal statute by a person other than the 
child's parent, guardian, custodian, or caretaker, 
the county director shall follow all procedures 
outlined in G.S. 7A-548 in making reports to the 
prosecutor and appropriate law enforcement 
agencies. The report shall include: 

(1) the name and address of the child, of 
the parents or caretakers with whom the 
child lives, and of the alleged perpetra- 
tor when this person is different from 
the parents or caretaker; 

(2) whether the abuse was physical, sexual 
or emotional; 

(3) the dates that the investigation was 
initiated and that the evidence of abuse 
was found; 

(4) whether law enforcement has been 
notified and the date of the notification; 

(5) what evidence of abuse was found; 

(6) what plan to protect the child has been 
developed and what is being done to 
implement it. 

(g) When a thorough investigation reveals the 
presence of abuse, neglect, or dependency in an 
institution, the county director shall complete the 
following steps: 

(1) the child's or children's legal custodian 
shall be informed; 

(2) an intervention plan for the care and 
protection of the child or children shall 
be developed in cooperation with the 
institution and the legal custodian; and 

(3) when abuse is found, a written report 
shall be made to the prosecutor in the 
county where the institution is located. 

Statutory Authority G S. 7A-544; 7A-548; 143B-153. 



****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Social Services Commission 
intends to amend rule cited as 10 NCAC 42A 
.0602. 

1 he proposed effective date of this action is 
March 1, 1995. 

1 he public hearing will be conducted at 10:00 
a.m. on December 7, 1994 at the Albemarle Bldg. , 
Room 943-2, 325 N. Salisbury Street, Raleigh, 
North Carolina 27603-5905. 

MVeasonfor Proposed Action: To allow an assess- 
ment for Adult Placement Services, which is 
transferred within the agency or referred from 
another service provider or facility, to be used and 
updated without requiring a personal contact with 
the client for the assessment. 

Comment Procedures: Comments may be pre- 
sented in writing anytime before or at the public 
hearing or orally at the hearing. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Any person may request copies of this 
rule by calling or writing to Shamese Ransome, 
Division of Social Services, 325 N. Salisbury 
Street, Raleigh, North Carolina 27603-5905, 
telephone: (919) 733-3055. 

CHAPTER 42 - INDIVIDUAL 
AND FAMDLY SUPPORT 

SUBCHAPTER 42A - ADULT 
PLACEMENT SERVICES 

SECTION .0600 - SERVICE 
REQUIREMENTS 

.0602 ASSESSMENT AND 

SUPPORTIVE COUNSELING 

(a) A thorough assessment must be conducted of 
the client's situation, including strengths and 
limitations in the following areas: 

(1) physical health; 

(2) mental health; 

(3) social system; 

(4) activities of daily living and instrumen- 
tal activities of daily living; 

(5) economic and financial circumstances; 



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1170 



PROPOSED RULES 



and 
(6) environment. 

(b) With the exception of the circumstances 
listed below the client must be seen personally by 
the social worker as many times as is necessary to 
do a thorough assessment in the six areas, but a 
minimum of one time. The personal contact may 
be in a setting other than the client's home, if the 
client or others can provide the necessary informa- 
tion for an assessment of the client's living envi- 
ronment, and, if during the course of the assess- 
ment, it does not appear that in-home services will 
be needed or appropriate as an alternative to 
placement or as an interim service plan. 

(c) For the following situations, an assessment 
must be done as thoroughly as possible with 
information and resources available to the social 
worker, without requiring personal contact with 
the client to complete the assessment. 

(1) a client who is not currently living in 
the county in which the application is 
made; 

(2) a client who is in an emergency situa- 
tion, where a placement is needed 
quickly and personal contact would be 
a barrier to achieving a quick place- 
ment; 

(3) a client whose case is being transferred 
f-Fefij — one social — worker to — another 
within the agency or referred by anoth- 
er service provider or facility , and an 
original assessment which addresses all 
six functional areas is available. This 
assessment must be updated to reflect 
current information^ f 



ffr 



a client who i s already in a facility and 
is requesting Adult Placement Services, 
and an original assessment which ad 
dresses all six functional areas is avail 
able. — Thi s as s essment must be updated 
to reflect current information. 
(d) Documentation must reflect the reason the 

client was not seen personally in conducting the 

assessment. 

Statutory Authority G.S. 143B-153. 

****************** 

iiotice is hereby given in accordance with G.S. 
150B-21.2 that the Social Services Commission 
intends to amend rule cited as 10 NCAC 42 C 
.3601. 



1 he proposed effective date of this action is 
March 1, 1995. 

1 he public hearing will be conducted at 10:00 
a.m. on December 7, 1994 at the Albemarle 
Building, Room 443-2, 325 North Salisbury Street, 
Raleigh, NC 27603. 

MVeason for Proposed Action: To eliminate the 
reference to the Internal Review Committee in the 
rule due to a proposed change in process. 

Ksomment Procedures: Comments may be pre- 
sented in writing anytime before or at the public 
hearing or orally at the hearing. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Any person may request copies of this 
rule by calling or writing to Ms. Sharnese 
Ransome, Division of Social Services, 325 N. 
Salisbury Street, Raleigh, NC 27603, (919) 733- 
3055. 

CHAPTER 42 - INDIVIDUAL 
AND FAMDLY SUPPORT 

SUBCHAPTER 42C - LICENSING 
OF FAMILY CARE HOMES 

SECTION .3600 - ADMINISTRATIVE 

PENALTY DETERMINATION 

PROCESS 

.3601 ADMINISTRATIVE PENALTY 
DETERMINATION PROCESS 

fa) — The county department of social s ervices 
s hall identify areas of non compliance resulting 
from an investigation or monitoring visit which 
may be violations of residents' rights contained in 
Gt& — 131D 21 — et — rules — contained — m — this 
Subchapter. — If the county department decides to 
recommend an administrative penalty as defined in 
G.S. 13 ID 3 4 , it shall prepare an administrative 
penalty proposal for s ubmission to the Division of 

Facility Services. The proposal shall include 

documentation that the facility administrator wa s 
notified — of the — county — department's — intent — te 
prepare and forward — em — administrative penalty 
proposal to the Division of Facility — Services; 
offered — an — opportunity — te — provide — additional 
informati on — prior — te — the — preparation — ef- — the 
proposal; after the proposal is prepared, given a 
copy of the contents of the proposal; and then 
e xtended an opportunity to request a local confer 



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9:15 



PROPOSED RULES 



cncc with the county department, allowing the 
administrator 10 days to respond prior to forward 
ing the propo s al. — The conference, if requested, 
shall include county department management s taff. 
The administrator may request a conference and 
produce information to cause the county depart 
ment to change its proposal. — The county may 
rescind its proposal; or change its propo s al and 
submit it to the Division of Facility Services or 
submit it unchanged to the Division. The proposal 
shall be reviewed by the Division's Internal Ro 
view Committee. 

fb) — The Internal Review Committee s hall be 
comprised of throe members: 

{i} The deputy chief of the Medical Facili 

tics Licensure Section, — or a person 
designated by the chief of the Medical 
Facilities Licensure Section, who shall 
s erve as chairm aet 

{3} A per s on designated by the chief of the 

Domiciliary and Group Care Section; 

Qud 

{3} A third party selected by the deputy 

director of the Division of Facility 
Services. 

(o) The Divi s ion of Facility Services s hall notify 
the administrator by — certified — mei\ — within — \Q 
working days from the time the propo s al i s re 
ceived by the Internal Review Committee that an 
admini s trative penalty is being considered. 

{d) — The administrator shall have 10 working 
days from receipt of the notification to provide the 
Division and the county department — of social 
s ervices any additional written information relating 

to the propo s ed admini s trative penalty. Any 

information provided s hall be considered by the 
Internal Review Committee. — The admini s trator 
s hall have five working days from receipt of the 
notification to advi s e the Divi s ion as to whether 
the admini s trator, and authorized representative or 
both plan to moot with the Internal Review Com 
mittoc. 

{e) — If the administrator chooses to attend the 
meeting as provided in Paragraph (d) of thi s Rule, 
the Division s hall notify representatives of the 
county — department — of s ocial — services — and — the 
Division of Aging of the admini s trator's plans to 
meet with the Committee or any change in the date 
or time of the meeting. The agency that conducted 
the investigation s hall be responsible for notifying 
the complainant, if any. — The complainant, if any, 
may attend the meeting relating to his or her 
complaint. 

(f) The Internal Review Committee shall review 
all admini s trative penalty proposals, any support 



tng — evidence, — and — any — additional — informati en 
provided by the admini s trator that may have a 
bearing on the propo s al s uch as documentation not 
available during the investigation or monitoring 
visit, action taken to correct the violation and plan s 
to prevent the violation from recurring. 

(g) There s hall be no taking of s worn testimony 
nor cross examination of anyone during the course 
of Internal Review Committee meetings. 

(b) — Time s hall be allowed during the Internal 
Review Committee meeting s for individual prcscn 
tations, the total for which shall normally be one 
hour for each facility where the violation s took 

place, but shall not exceed two hours. The 

amount of time allowed, up to two hour s , s hall be 
at the di s cretion of the Internal Review Committee 
chair. — The order in which presenters s hall s peak 
and length of presentation s s hall be at the discro 
tion of the chair. 

(i) If it i s determined that the administrator has 
violated applicable rules or statutes, the Internal 
Review Committee s hall recommend an adminis 
trotivc penalty type and amount for each violation 
pursuant to G.S. 131D 3 4 . — The Division shall 
notify the admini s trator and the county department 
ef- — social — services — by — certified — maH — of- — the 
Committee's decision within five working days 
following the Internal Review Committee meeting. 
Copies of the letter to the admini s trator s hall be 
forwarded by the Divi s ion to all parties involved 
with the penalty recommendation. The agency that 
conducted the investigation s hall be responsible for 
notifying the complainant, if any. 

tfi — If the recommended penalty is classified as 
Type B but i s not a repeat violation (as defined by 
G.S. 131D 3 4 ), the admini s trator may accept the 
recommendation — and — notify — the — Division — by 
certified moil within five working days following 
receipt of the recommendation. — If the penalty i s 
accepted, — the administrator has 60 days from 
receipt of the recommendation to pay the penalty. 

(k) — If the recommended penalty is a Type A 
violation; i s a Type B violation that has been cited 
during the previou s 12 month s ; or i s a Type B 
violation as provided in Paragraph (i) of thi s Rule 
but i s — not accepted by the administrator, — the 
Internal Review Committee shall forward to the 



Penalty Rcvi 



laity 



rtew Committee tee pene 

recommendation, t&e — rationale — fer — the 

recommendation and all information reviewed by 
the Internal Review Committee. 

0) — The Penalty Review Committee may agree 
with or recommend changes to the Internal Review 



Committee' s recommendations. 



4f- the 



recommendation s are different from those of the 



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1172 



PROPOSED RULES 



Internal — Review Committee, the Division shall 
attempt to notify the administrator the day of the 
Penalty Review Committee meeting. 

fm) — Recommendations by the Penalty Review 
Committee shall be forwarded to the Chief of the 
Domiciliary and Group Care Section who shall 
have five working days from the date of the 
Penalty Review Committee meeting to determine 
and — impose — admini s trative — penalties — fef — eaee 
violation as provided by G.S. 13 ID 3 4 and notify 
the administrator by certified mail. 

{ft} — The admini s trator shall have 60 day s from 
receipt of the notification to pay the assessment or 
30 day s to appeal the deci s ion as provided by G.S. 
13 1 D 3 4 . — The Divi s ion shall notify the Attorney 
General' s Office of any outstanding assessments. 

(a) The county department of social services 
shall identify areas of non-compliance resulting 
from a complaint investigation or monitoring visit 
which may be violations of residents' rights 
contained in G.S. 131D-21 or rules contained in 
this Subchapter. If the county department of 
social services decides to recommend an 



department of social services to request 
necessary changes or additional 
material. 
{3} When the proposal is complete and a 
type and amount of penalty determined, 
the assistant chief shall forward the 
proposal to the administrative penalty 
monitor for processing. 

(c) The Department shall notify the licensee by_ 
certified mail within 10 working days from the 
time the proposal is received by the administrative 
penalty monitor that an administrative penalty is 
being considered. 

(d) The licensee shall have 10 working days 
from receipt of the notification to provide both the 
Department and the county department of social 
services any additional information relating to the 
proposed administrative penalty. 

£e) If the penalty recommendation is classified as 
a Type B violation and is not a repeat violation as 
defined by G.S. 131D-34. the licensee shall be 
notified of the type and amount of the penalty and 
may accept the recommendation instead of review 
by the Penalty Review Committee. If the penalty 



administrative penalty as defined in G.S. 131D-34, 
it shall prepare an administrative penalty proposal 
for submission to the Department. The proposal 
shall include documentation that the licensee was certified mail within five working days following 



recommendation is accepted, the licensee must 
notify the administrative penalty monitor by 



notified of the county department of social 
services' intent to prepare and forward an 
administrative penalty proposal to the Department: 
offered an opportunity to provide additional 
information prior to the preparation of the 
proposal: after the proposal is prepared, given a 
copy of the contents of the proposal; and then 
extended an opportunity to request a local 
conference with the county department of social 
services, allowing the licensee 10 days to respond 
prior to forwarding the proposal . The conference. 
if requested, shall include county department 
management staff. The licensee may request a 
conference and produce information to cause the 
county department of social services to change its 
proposal. The county department of social 
services may rescind its proposal; or change its 
proposal and submit it to the Department or submit 
it unchanged to the Department. 

fb) An assistant chief of the Domiciliary and 
Group Care Section shall receive the proposal and 
review it for completeness. 

(1) If the proposal is complete, the assistant 

chief shall make a decision on the type 

and amount of penalty to be submitted 

for consideration. 
ill If the proposal is incomplete, the 

assistant chief shall contact the county 



receipt of the recommendation. The licensee must 
include payment of the penalty with the 
notification. If payment is not received, the 
recommendation shall be forwarded to the Penalty 
Review Committee. 

(f) The Penalty Review Committee must review 
a recommended penalty when: it is a Type A 
violation; is a Type B violation that has been 
previously cited during the previous 12 months or 
within the time period of the previous licensure 
inspection, whichever time period is longer: or is 
a Type B violation as provided in Paragraph (e) of 
this Rule which is not accepted by the licensee. 

(g) A subcommittee of the Penalty review 
Committee consisting of four committee members 
assigned by the Penalty Review Committee chair 
shall meet to initially review non-repeat Typ e B 
violations. The Penalty Review Committee chair 
shall a ppoint the subcommittee chair and shall be 
an ex-officio member of the Penalty Review 
Committee subcommittee. Providers, 
complainants, affected parties and any member of 
the public may attend this meeting. The 
administrative penalty monitor shall be responsible 
for informing parties of these meeting dates with 
the exception that the agency which conducted the 
complaint investigation shall be responsible for 
notifying the complainant, if any. 



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9:15 



PROPOSED RULES 



(h) Time shall be allowed during the Penalty 
Review Committee subcommittee meetings for 
individual presentations concerning proposed 
penalties. The total time allowed for presentations 
concerning each facility, the order in which 
presenters shall speak and length of presentations 
shall be determined by. the Penalty Review 
Committee subcommittee chair. 

fi} The administrative penalty monitor shall have 
five working days from the meeting date to notify 
the facility and involved parties of penalty 
recommendations made by the Penalty Review 
Committee subcommittee with the exception that 
the agency which conducted the complaint 
investigation shall be responsible for notifying the 
complainant, if any. These recommendations 
including the vote of the Penalty Review 
Committee subcommittee shall be submitted for 
review by the full Penalty Review Committee at a 
meeting scheduled for the following month. 

(j) The full Penalty Review Committee shall 
consider Type A violations, repeat Type B 
violations and non-repeat Type B violations 
referred by. the Penalty Review Committee 
subcommittee. 



Providers, complainants, affected parties and any 
member of the public may attend full Penalty 
Review Committee meetings. Upon written 
request of any affected party showing good cause, 
the Department may grant a delay until the 
following month for Penalty Review Committee 
review. The Penalty Review Committee chair may 
ask questions of any of these persons, as 
resources, during the meeting. Time shall be 
allowed during the meeting for individual 
presentations which provide pertinent additional 
information, normally not to exceed 10 minutes in 
length for each proponent. The order in which 
presenters speak and the length of each 
presentation shall be at the discretion of the 
Penalty Review Committee chair. 

00 The Penalty Review Committee and Penalty 
Review Committee subcommittee shall have for 
review the entire record relating to the penalty 
recommendation. The Penalty Review Committee 
and Penalty Review Committee subcommittee shall 
make recommendations after review of negative 
action proposals, any supporting evidence, and any 
additional information submitted by the licensee as 
described in Paragraph (d) of this Rule that may 
have a bearing on the proposal such as documenta- 
tion not available during the complaint investiga- 
tion or monitoring visit, action taken to correct the 
violation and plans to prevent the violation from 
recurring. 



(1) There shall be no taking of sworn testimony 
nor cross-examination of anyone during the course 
of the Penalty Review Committee subcommittee or 
full Penalty Review Committee meetings. 

£m) If the Penalty Review Committee determines 
that the licensee has violated applicable rules or 
statutes, the Penalty Review Committee shall 
recommend an administrative penalty type and 
amount for each violation pursuant to G.S. 131 D- 
34. Recommendations for domiciliary home 
penalties shall be submitted to the Chief of the 
Domiciliary and Group Care Section who shall 
have five working days from the date of the 
Penalty Review Committee meeting to determine 
and impose administrative penalties for each 
violation and notify the licensee by certified mail. 

(n) The licensee shall have 60 days from receipt 
of the notification to pay the penalty or must file 
a petition for a contested case with the Office of 
Administrative Hearings within 30 days of the 
mailing of the notice of penalty imposition as 
provided by G.S. 131D-34. 

Statutory Authority G.S. 131D-2; 131D-34; 143B- 
153. 

TITLE 12 - DEPARTMENT OF 
JUSTICE 

Notice is hereby given in accordance with G.S. 
150B-21.2that the North Carolina Private Protec- 
tive Services Board intends to adopt rule cited as 
12NCAC7D .0113. 

A he proposed effective date of this action is 
February 1, 1995. 

1 he public hearing will be conducted at 2:00 
p.m. on November 16, 1994 at the State Bureau of 
Investigation, Conference Room, 3320 Old Garner 
Road, Raleigh, N C. 27626-0500. 

ixeason for Proposed Action: The rule will 
require all licensees and registrants to notify the 
Board of any changes in address. Such informa- 
tion is critical for the Board to maintain current 
licensing information and will allow the Board to 
promptly contact the license holder. 

Isomment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. The Record of Hearing will be open 



9:15 



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November 1, 1994 



1174 



PROPOSED RULES 



for receipt of written comments until December 1 , 
1994. Written comments must be delivered to the 
Private Protective Services Board, 3320 Old 
Garner Road, Raleigh, N.C 27626-0500. 

CHAPTER 7 - PRIVATE PROTECTIVE 
SERVICES 

SUBCHAPTER 7D - PRIVATE 
PROTECTIVE SERVICES 

SECTION .0100 - ORGANIZATION 
AND GENERAL PROVISIONS 

.0113 CHANGE OF ADDRESS 

OR TELEPHONE NUMBER 

All licensees and registrants must inform the 
Board of their home address, business street 
address, home telephone number and business 
telephone number and must inform the Board 
within 15 days of any changes. 

Statutory Authority G. S. 74C-5. 

****************** 

IVotice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. Alarm Systems Licensing 
Board intends to adopt rule cited as 12 NCAC 11 
.0123. 

1 he proposed effective date of this action is 
February 1, 1995. 

1 he public hearing will be conducted at 1:00 
p.m. on November 17, 1994 at the Howard John- 
son Plaza Hotel, Conference Room, Interstate 40 
& Guilford-Jamestown Road, Greensboro, NC 
27419. 

Ixeasonfor Proposed Action: Sets forth consumer 
disclosure requirements for those engaged in the 
alarm systems business. 

(comment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. The Record of Hearing will be open 
for receipt of written comments through December 
1, 1994. Written comments must be delivered to 
the Alarm Systems Licensing Board, 3320 Old 
Garner Road, Raleigh, NC 27627-0500. 



CHAPTER 11 - NORTH CAROLINA 
ALARM SYSTEMS LICENSING BOARD 

SECTION .0100 - ORGANIZATION AND 
GENERAL PROVISIONS 

.0123 CONSUMER DISCLOSURE 

REQLTREMENTS FOR ALARM 
SERVICES 

(a) Any person, firm, association or corporation 
licensed to engage in the alarm systems business in 
North Carolina who sells, installs, services, re- 
sponds to or monitors electrical, electronic or 
mechanical alarm systems must make a written 
disclosure to the consumer on a form provided by 
the Alarm Systems Licensing Board and must 
retain a duplicate, signed copy in the customer 
file. All transactions initiated after the implemen- 
tation date consisting of the following: 

(1) Description of the sale(s) and/or ser- 
viced) provisions/limitation in brief, 
simple terminology; 
Name, address, phone number of the 
company and the North Carolina licens- 
ee; 

Statements that service requests or 
consumer complaints be addressed to 
licensee for resolution: 
Statement that in the event a consumer 
complaint is not resolved by. the licens- 



m 



oi 



14} 



ee. that relief or assistance may be 
sought by contacting the Alarm Systems 
Licensing Board. P.O. Box 29500. 
Raleigh. N.C. 27626. telephone number 
(919) 662-4387. 
(b) Any person, firm, association, or corpora- 



tion licensed to engage in the alarm systems 
business in North Carolina by providing sales, 
installation, service, response, or monitoring to a 
consumer and who unilaterally terminates, causes 
to be terminated or reasonably knows of the 
termination of the monitoring, response or service 
to that consumer, shall provide notification to that 
consumer by verified personal service or certified 
mail at least 10 days prior to cessation of the 
service(s). This provision shall not apply to 
consumer initiated action to terminate or upon 
consumer relocation. 

(c) Any person, firm, association or corporation 
licensed to engage in the alarm systems business in 
North Carolina by providing sales, installation, 
service, response, or monitoring to a consumer 
and who changes or causes to be changed the 
monitoring, response or service to that consumer, 
shall provide written notification to that consumer 



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9:15 



PROPOSED RULES 



of the change, the effective date and the name, 
address and telephone number of the new provider. 

Statutory Authority G.S. 74D-2; 74D-5. 

TITLE 13 - DEPARTMENT OF 
LABOR 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Labor intends to adopt rules cited as 13 NCAC 17 
.0101 - .0112. 

lhe proposed effective date of this action is 
March 1, 1995. 

lhe public hearing will be conducted at 10:00 
a.m. on December 5, 1994 at the NC Archives & 
History Building Auditorium, First Floor, 109 E. 
Jones Street, Raleigh, NC 27601-2807. 

Ixeason for Proposed Action: lb update the 
Private Personnel Services regulations. 

Csomment Procedures: Please submit your com- 
ments to Scott Templeton, APA Coordinator, NC 
Department of Labor, 4 W. Edenton Street, Ra- 
leigh, NC 27601, FAX (919) 733-6197; telephone 
(919) 733-0368 by December 5, 1994. You may 
present written or oral comments at the hearing; 
however, time limits may be imposed by the Chair. 

CHAPTER 17 - PRIVATE 
PERSONNEL SERVICES 

SECTION .0100 - PRIVATE 

PERSONNEL SERVICES 

REGULATIONS 

.0101 DEFINITIONS 

As used in G.S. 95, Article 5A and this Chapter, 
unless the context clearly requires otherwise: 

(1) "Accept an employer's offer of employ- 
ment," as used in G.S. 95-47.1(1). means 
to consent verbally or in writing to take 
the job the employer is offering. 

(2) "Advertising" means any material or 
method used by a private personnel ser- 
vice for solicitation or promotion of 
business. This includes, but is not limit- 
ed to. newspapers, radio, television, 
business cards, invoices, letterheads, or 



£31 

(4) 

£5} 



£61 



m 



£8} 



£21 



(10) 



£a} 

£bl 
M 
£dl 

Oil 



(12) 



other forms that may be used in combina- 
tion with the solicitation and promotion 
of business. 

"Communication," as used in G.S. 95- 
47.1(4). means a written communication. 
"Days" means calendar days. 
"Division" means the Private Personnel 
Service Division of the North Carolina 
Department of Labor. 
"Employer fee paid personnel consulting 
service" means any business that consults 
employers in locating and placing em- 
ployees where the sole obligation for the 
placement fee is assumed by the employ- 
er in all circumstances and the a pplicant 
is never obligated for the fee, directly or 
indirectly, even if the applicant quits or 
is terminated for cause. 
"Employment agency" or "agency" 
means the same thing as a private person- 
nel service which is defined in G.S. 95- 
47.1(16). 

"Existing licensed business." as used in 
G.S. 95-47.2(f), means any existing 
licensed private personnel service or job 
listing service. 

"Material information." as used in G.S. 
95-47.2(d)(3)a.. means any facts or 
knowledge that are relevant to operating 
a private personnel service. 
"Operate" means to engage in the 
business of a private personnel service 
within the State of North Carolina. 
Within the State of North Carolina 
includes, but is not limited to. the 
following: 

Property, offices, or employees located 

in North Carolina: 

Use of a North Carolina phone number; 

Use of a North Carolina address: or 

Interviewing a pplicants in North 

Carolina. 
"Premises." as used in G.S. 95- 
47.2(d)(3)c, means the property 
occupied by any owner or manager of the 
private personnel service where the 
business of the private personnel service 
is conducted. Two businesses occupy the 
same premises if a person can move from 
one to the other without traveling through 
a public area available to non-customers. 
"Private personnel service industry" 
means all private personnel services that 
are or may be required to be licensed to 
operate in the State of North Carolina. 



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1176 



PROPOSED RULES 



(13) "Responsible for the operation" means to 
conduct the daily administrative functions 
required to direct and control the 
business. This includes, but is not 
limited to. current and ongoing 
knowledge and oversight of the 
following: all placement functions; hours 
the business operates; hiring, supervision, 
and dismissal of the business' personnel; 
the finances and financial records of the 
business; advertising; job orders; 
compliance with G.S. 95. Article 5A; 
and the needs of a pplicants and 
employers who work with the business to 
receive placement and hiring assistance. 
It further means that the person is 
available during working hours to answer 
questions and respond to the needs of 
applicants, employers, the business' own 
employees, and the Division. 

(14) Except in G.S. 95-47.2(d)(l). in G.S. 95- 
47.2(d)(3)b.2 and in OS, 95- 
47.2(d)(3)b.3. "rules", "regulations", or 
"rules or regulations" as used in G.S. 95. 
Article 5_A and in this Chapter refer to 
administrative rules adopted by the 
Department of Labor pursuant to G.S. 
95. Article 5A and G.S. 150B. 

(15) "Temporary help service" means any 
business which employs persons whom it 
assigns to assist its customers. The 
employer-employee relationship exists 
between the temporary help service and 
the employee. A temporary help service 
never charges the employee a fee for 
providing its service even if it leads to a 
permanent placement with the temporary 
help service customer. 

Statutory Authority G.S. 95-47.9. 

.0102 LICENSING PROCEDURES 

(a) Application for License. Any person 
desiring to operate a private personnel service, as 
defined in OS^ 95-47.1(16). shall fije an 
application for license with the Commissioner. 

(1) If the private personnel service is 
owned by. an individual, the application 
shall be made by that individual; 

(2) If the private personnel service is 
owned by a partnership, each partner 
shall file an application; 

(3) If the private personnel service is 
owned by a corporation. each 
stockholder who owns at least 20 



percent of the issued and outstanding 

voting stock of the corporation shall file 

an a pplication: or 

(4) If the private personnel service is 

owned by an association, society, or 

corporation in which no one individual 

owns at least 20 percent of the issued 

and outstanding voting stock, the 

a pplication shall be made by the 

president, vice president, secretary and 

treasurer of the owner, by whatever 

title designated. 

(b) Information to Accompany A pplication for 

License. Each application for a private personnel 

service license shall be made on forms prescribed 

and furnished by the Commissioner and shall 

contain details regarding the following 

information: 

(1) The proposed business name, street and 
mailing address, and telephone number 
of the private personnel service: 

(2) Four personal or business references 
who are not related to or currently 
employed by the a pplicant; 

(3) Whether the private personnel service 
will be affiliated in any way with a loan 
agency or collection agency; 

(4) The name and address of the person 
who is responsible for the direction and 
operation of the placement activities of 
the private personnel service; 

(5) Whether the person responsible for the 
direction and operation of the placement 
activities of the private personnel 
service has ever been employed in a 
private personnel service; 

(6) Whether the private personnel service 
will operate under a franchise 
agreement; 

(7) Whether the a pplicant, owner, officer, 
director or manager ever made an 
application for a license to operate a 
private personnel service in North 
Carolina or elsewhere: 

(8) Whether the a pplicant, owner, officer, 
director or manager ever had a license 
revoked, suspended, or refused, or has 
been subjected to any disciplinary 
action by any governmental body; 

(9) Whether the applicant, owner, officer, 
director or manager has ever been 
convicted of a crime other than parking 
violations and misdemeanor traffic 
offenses; 

(10) Whether the a pplicant, owner, officer. 



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9:15 



PROPOSED RULES 



director or manager of the service has 
any additional ownership or investment 
interest in other businesses: 

(11) The name and address of a newspaper 
of general circulation in the area where 
the a pplicant now resides: 

(12) The name and address of each of the 
a pplicants' prior employers during the 
five years immediately preceding the 
license application: 

(13) A copy of all contracts and forms to be 
used with a pplicants: 

(14) A copy of the fee schedule and a copy 
of the refund policy (if a pplicable) used 
with persons seeking employment and 
employers: 

(15) If the a pplicant is a corporation, a copy 
of the Articles of Incorporation: 

(16) If the applicant is a partnership, a copy 
of the Partnership Agreement: 

(17) The Surety Bond required by G.S. 95- 
47.20): and 

(18) Any other names, aliases, assumed 
business names, trade names, or doing 
business as ("DBA") names under 
which each a pplicant has operated. 

(c) Assumed Name or Assumed Business Name: 
(0 If either the owner or the manager of a 

private personnel service wishes to use 
a name other than his or her legal 
name, then that person shall file the 
assumed name with the office of the 
register of deeds in the county in which 
they will operate and give a copy to the 
Division. 

(2) If any. counselors or employees of the 
private personnel service, who work 
with applicants, wish to use a name 
other than his or her legal name, then 
those persons shall file the assumed 
name with the office of the register of 
deeds and give a copy to the Division. 

(3) If a private personnel service uses a 
name other than on the license 
application, then the owner(s) of the 
private personnel service shall file the 
assumed business name with the office 
of the register of deeds and give a copy 
to the Division. 

(d) Release of Information Authorization: 
(1) By a pplicant: 

(A) Each applicant for a private personnel 
service license shall sign a Release of 
Information authorizing the 
Commissioner to conduct a personal 



background investigation for purposes 
of determining the a pplicant's 
suitability to operate a private 
personnel service. 
(B) The release shall be executed before a 
notary public. 
(2) By officer, director or manager: 

(A) The officer, director or manager of a 
private personnel service, not covered 
by Subparagraph (d)(1) of this Rule, 
shall sign a Release of Information 
authorizing the Commissioner to 
conduct a criminal background inves- 
tigation for purposes of determining 
the suitability of that person to oper- 
ate a private personnel service. 

(B) The release shall be executed before a 
notary public. 

(e) Interview with the Division. Each individual 
a pplicant shall come to the Division for an inter- 
view as part of the a pplication process. 

(f) Right to Protest. Individuals have a right to 
protest the issuance of a license in accordance with 
G.S. 95-47.2(d)(l): 

(1) In determining whether the protest is of 
such a nature that a hearing should be 
conducted and for a cause on which 
denial of a license may properly be 
based, the Commissioner will look to 
the reasons for denying a license found 
In OS, 95-47.2(d)(3) and G.S. 9JL 
47.2(e). 

(2) The hearing 



shall be conducted in 
accordance with the provisions of G.S. 
150B-38 - G.S. 150B-42. 
(g) Denial of License. Upon completion of the 
investigation, the Commissioner shall determin e 
whether or not a license should be issued. In 
addition to the reasons for denial in G.S. 95. 
Article 5A. a license shall be denied if the app li- 
cant has failed to submit all of the necessary 
information and paperwork which is described 
under Licensing Procedures in Rule .0102 of this 
Chapter. 

(h) Notice of Approval. If the Commissioner 
approves a private personnel service license, the 
a pplicant shall be notified and the license shall be 
issued. 
{i} Notice of Opportunity to Withdraw: 
(1) If the application for a license is incom- 
plete, the a pplicant shall be notified by 
telephone of this feet at least seven days 
prior to the end of the 30 day investig a- 
tive period. The applicant can either 
complete the a pplication within that 



9:15 



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1178 



PROPOSED RULES 



license found in OS,. 95-47.2(d1(3). 



G.S. 95-47.2(e). and G.S. 95-47.2(fl. 



seven days or withdraw the application. 

£21 If the a pplicant elects to withdraw the 

application, the Division will deem any 

supporting documents which the Statutory Authority G. S. 95-47. 2; 95-47. 9. 

Division has obtained, such as the 

and 



criminal background check 
references, current for an additional 30 
days within which time the applicant 
may refile the application. 
(3) Failure to withdraw an incomplete 
application before the end of the 
original 30 day investigative period will 
shall result in the denial of a private 
personnel service license. However, 
the applicant may re-app ly. 
£j) Notice of Denial. If the Commissioner 
denies a private personnel service license, the 
applicant shall be notified of this fact by certified 
mail sent to his or her last known address. 

Statutory Authority G.S. 95-47.2; 95-47.3; 95- 
47.9. 

.0103 DURATION OF LICENSE 

(a) Period Issued. A license to operate a private 
personnel service shall be valid for one year from 
the date of issuance, which is the date that appears 
on the actual license. 
fb) Renewal: 
(1) At least 30 days prior to the date of 
expiration, the Commissioner shall 
notify each licensee in writing of the 
expiration of the license. 
£2} Renewal applications, completed on a 
form provided by the Division, must be 
submitted to the Division at least 10 
days prior to the expiration date of the 
license. The renewal a pplication shall 
be executed before a notary public and 
shall include all material changes in the 
operation of the private personnel 
service different from the latest 
a pplication for licensure or renewal or 
shall certify that no such changes have 
occurred, 
(c) Review of Licensee's Records : 

(1) At the time of a pplication for renewal, 
the Division's records regarding the 
licensee's operation shall be reviewed, 
including but not limited to. records of 
inspections and investigations conducted 
by the Division. 

(2) In determining whether a license should 
be renewed, the Commissioner will 
look to the reasons for denying a 



.0104 CHANGE OF PRIVATE 

PERSONNEL SERVICE STATUS 

(a) Change of Private Personnel Service Name: 

(1) Licensees desiring to change the name 
of their private personnel service must 
give the Commissioner 30 days advance 
written notice. 

(2) In addition, the licensee must obtain a 
rider to the surety bond showing the 
new name and submit it to the Division 
before the new name can become final. 

£3} In addition, when a change in name 
requires a new filing of an assumed 
business name, a copy of the new filing 
must be provided to the Commissioner 
before the new name can become final. 

£4} A change in the name does not require 
a new license, only an amendment to 
the current license. 

(5) After completion of the requirements in 
this Paragraph, the licensee shall return 
his current license to the Division for 
such amendment and reissuance. 

(b) Change of Private Personnel Service 
Location: 

(1) Licensees desiring to change the 
location of their private personnel 
service must give the Commissioner 30 
days advance written notice. 

(2) A change in the location of the private 
personnel service does not require a 
new license, only an amendment to the 
current license. 

£3} The licensee shall return his current 
license to the Division for such 
amendment and reissuance. 

(c) Assignment/Transfer of License: 

(1) Licensees desiring to assign or transfer 
their license to a new owner must give 
the Commissioner 30 days advance 
written notice. 

(2) In addition, the proposed new owner 
must file an a pplication for license with 
the Commissioner and obtain a new 
surety bond. 

(3) After completion of the requirements in 
this Paragraph, the Commissioner shall 
issue a temporary license in accordance 
with G.S. 95-47.2(1). 

(d) Relinquishment of License. Licensees 



1179 



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9:15 



PROPOSED RULES 



desiring to relinquish their license must: 

(1) Notify the Commissioner in writing: 

Return the actual license to the 
Division; and 



£21 
£31 



£21 



£31 



Comply with the provisions in G.S. 95- 
47.5 and Rule .0109 of this Chapter. 

(e) Cancellation of the Bond by the Surety: 

(1) Upon receipt of a Notice of 
Cancellation of the bond by. the surety, 
the Commissioner shall advise the 
licensee in writing of such cancellation. 
The Division must receive a new bond 
prior to the effective date of 
cancellation of the existing bond. 
If a new bond is not received prior to 
the cancellation of the existing bond, 
the Commissioner shall advise the 
licensee in writing that the 
Commissioner will seek injunctive 
relief to suspend operation of the 
private personnel service under G.S. 
95-47.10 pending receipt of the surety 
bond required by G.S. 95-47.2(i). 
Failure to maintain the surety bond at 
all times shall be grounds for 
revocation of the license by the 
Commissioner. 

(f) Disassociation of Manager: 

(1) Should any manager become 
disassociated with a licensee for any 
reason, the licensee shall notify the 
Commissioner of this fact within 10 
days and shall at that time designate 
another manager unless there was more 
than one manager and the remaining 
manager(s) will be managing the private 
personnel service without replacement 
of the disassociating manager. 
A newly designated manager shall sign 
a Release of Information authorization 
pursuant to Rule .0102 of this Chapter. 
Upon completion of the investigation 
and a pproval of the newly designated 
manager, the licensee shall return his 
current license to the Division for such 
amendment and reissuance. 



£21 



£31 



Statutory Authority G.S. 95-47.2; 95-47.9. 

.0105 CHANGES IN THE FEE 

SCHEDULE OR CONTRACT 

Changes in the fee schedule or contract may only 
be made if the private personnel service receives 
written notification from the Commissioner that the 
changes conform to the requirements of G.S. 95. 



Article 5_A and the rules adopted in this Chapter. 

Statutory Authority G.S. 95-47.3; 95-47.4; 95- 
47.9. 

.0106 FEE REIMBURSEMENT 

This Rule addresses requests for fee 

reimbursement by an a pplicant who accepts 

employment, the compensation for which is based. 

in whole or in part, on commission and who pays 

a fee based on the commission-based earnings. 

(1) Complaints Against Employers: 

(a) Filing the Complaint. Any applicant 

using a private personnel service 

desiring to fije a complaint involving a 

fee reimbursement from an employer in 

accordance with G.S. 95-47.3A(a) shall 

file a written complaint with the 

Commissioner, signed before a notary 

public. The complaint shall be filed 

either within 60 days of the date last 

employed or after one year of 

employment, whichever is earlier. 

£b_l Contents of the Complaint. The 

complaint shall state the name and 

address of the employer complained 

against, the licensee's name and 

address, and shall fully detail the nature 

of the complaint. 

(c) Copy of Complaint to Employer. 

When a complaint is filed, the 

Commissioner shall serve a copy of the 

complaint upon the employer 

complained against either personally, by 

certified mail. by_ overnight express, or 

faxed as long as the employer 

acknowledges receipt. Likewise, the 

Commissioner shall send a copy of the 

complaint by the same means to the 

licensee responsible for making the 

placement. The employer and the 

licensee shall respond to the complaint 

within 10 days of the receipt of the 

complaint. The response shall include 

copies of all written receipts and 

agreements which either the employer 

or the licensee has in its possession 

concerning the particular complaint and 

other material as requested by. the 

Division. 

£21 Complaints Against Private Personnel 

Services: 

(a) Filing the Complaint. Any a pplicant 

using a private personnel service 

desiring to fije a complaint involving a 



9:15 



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November 1, 1994 



1180 



PROPOSED RULES 



fee reimbursement where the private 
personnel service is responsible for any 
potential fee refund in accordance with 
G.S. 95-47.4(h) shall file a written 
complaint with the Commissioner, 
signed before a notary public. The 
complaint shall be filed either within 60 
days of the date last employed or after 
one year of employment, whichever is 
earlier. 

(b) Contents of the Complaint. The 
complaint shall state the name and 
address of the licensee complained 
against and shall fully detail the nature 
of the complaint. 

(c) Copy of Complaint to Licensee. When 
the complaint is filed. the 
Commissioner shall serve a copy of the 
complaint upon the licensee complained 
against either personally, by certified 
mail, by. overnight express, or faxed as 
long as the licensee acknowledges 
receipt. The licensee shall respond to 
the complaint within 10 days of the 
receipt of the complaint. The response 
shall include copies of all written 
receipts and agreements which the 
licensee has in its possession 
concerning the particular complaint and 
other material as requested by the 
Division. 

(3) Investigation: 

(a) The Commissioner shall investigate the 
complaint to determine whether the 
a pplicant is entitled to a refund. 

(b) If the employer is liable for a potential 
fee reimbursement, the burden of proof 
is on the employer to show that a 
statement by the employer in the 
licensee's written job order of potential 
or anticipated commission-based 
earnings is realistic under the 
circumstances. 

(c) If the private personnel service is liable 
for a potential fee reimbursement, the 
burden of proof is on the private 
personnel service to show that a 
statement in the licensee's written job 
order of potential or anticipated 
commission-based earnings is realistic 
under the circumstances. 

(d) In addition, the Commissioner may 
consider such factors including, but not 
limited to. the following: 

What compensation other people in 



the same job as the applicant are 
making or have made; 
(ii) The market and economy; 
(iii) Competition. 

The Commissioner shall look at these 

factors in the 

complainant's job 

experience, number of hours worked 



context 
training, 
number of hours 



of the 
relative 



number of calls made in person or over 
the phone, and a determination of the 
complainant's ability and effort to do 
the job. 
£4) Determination. The Commissioner shall 
make a determination within 60 days 
from the date of the filing of the 
complaint and shall notify both the 
complainant, and either the licensee or 
the employer, as is appropriate, of the 
determination. 
(5) Hearing: 

(a) Request for Hearing. Either party may 
file a written request for a hearing 
before the Commissioner within seven 
days from the receipt of notice of the 
Commissioner's determination. 

(b) Notice of Hearing. Notice of the 
hearing shall be given in accordance 
with G.S. 150B-38. 

(c) Conduct of Hearing. 

£i] Parties may a ppear in their own 
behalf or be represented by counsel. 
When an attorney represents a party. 
he or she shall advise the 
Commissioner of his or her name, 
address and telephone number in 
advance of the hearing as soon as 
practicable after assuming 
representation. 

(ii) All witnesses at the hearing shall 
testify under oath or affirmation. 

(iii) The Commissioner may issue 
subpoenas requiring the attendance 
and testimony of witnesses and take 
depositions as deemed necessary. 

(iv) Within 30 days after the conclusion of 
a hearing, the Commissioner shall 
render a decision in writing. Copies 
of the Commissioner's findings and 
order shall be sent by certified mail to 
the parties. 

(v) A party aggrieved by the 
Commissioner's decision may seek a 
review of the decision in accordance 
with G.S. 150B-43 - G.S. 150B-52. 



iii 



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9:15 



PROPOSED RULES 



Statutory Authority G.S. 95-47. 3 A; 95-47.9. 

.0107 JOB ORDERS 

(a) Bona Fide Job Order Required. No private 
personnel service shall offer or hold itself out as 
being able to secure a specific position of 
employment for an applicant without having a 
bona fide job order. 

(b) Oral Job Orders Must be Reduced to 
Writing. A bona fide job order shall be recorded 
on a form containing the following: 

(1) Name and title of person 
communicating job order to the private 
personnel service; 

(2) Name of person recording the job 
order; 

{3} Date: 

(4) Name and address of employer and 
name and title of person to whom the 
a pplicant is to report for an interview: 

(5) Job title and job requirements; 

(6) Requisite education/ experience: 

(7) All known conditions of employment, 
including salary, or salary range, 
wages, commissions, benefits, hours 
and number of days of work per week: 

(8) Name of person or organization who is 
responsible for the placement fee. 

(c) Private Personnel Service Responsible for 
Explaining Conditions of Employment 

Prior to the a pplicants' interview with the 
employer, the private personnel service must 
disclose to the applicant information in 
Subparagraph (b)(4) through (b)(8) of this Rule. 
these items having been reduced to writing from 
conversations with the employer and being 
accurate to the best of the private personnel 
service's knowledge at the time of the interview. 

(d) Commission-based Compensation: 

(1) If an applicant is to be compensated, in 
whole or in part, by commissions and 
the employer will be responsible for a 
potential fee reimbursement, then the 
job order must also be signed by the 
employer. 

(2) A private personnel service may, 
however, forego the written job order 
requirement if it is willing to assume 
liability for a potential fee 
reimbursement in accordance with G.S. 
95-47.4(f) and G.S. 95-47.4(h)(2). 

(e) Job Order Verification. Job orders for 
which candidates are referred or for which 
advertisements are placed shall be verified at least 
once every month. 



Statutory Authority G.S. 95-47. 3 A; 95-47.6; 95- 
47.9. 

.0108 CONTRACTS 

(a) Types of Contracts. There must be a 
contract for any service if a fee is charged to the 
applicant. An a pplicant may enter into either or 
both of the following types of contracts with a 
private personnel service: 

(1) A contract for employment placement 
with payment of a fee contingent on 
acceptance of employment: 

(2) A fee contract for services including, 
but not limited to. career and 
occupational counseling, resume and 
letter writing, networking assistance, 
interviewing techniques, job 
prospecting and salary negotiations. 

(b) A pplicant to Receive Cop y of Contract. At 
the time of execution an applicant shall receive a 
copy of the contract signed by the a pplicant and 
the private personnel service. 

(c) Name of A pplicant. The applicant's name 
shall be typed or printed adjacent to the place for 
the applicant's signature. 

(d) Contract for Employment Placement. All 
contracts for employment placement with an 
applicant shall set forth in clear and unambiguous 
terms the respective rights and obligations of the 
applicant and the private personnel service and 
shall include the following: 

(1) A statement of the fees to be charged 
the a pplicant at various salary levels; 

(2) If compensation is based, in whole or in 
part, on commissions, a description of 
how the private personnel service 
determines its fees; 

(3) An explanation of when the a pplicant 
becomes obligated to pay a fee; 

(4) Where the private personnel service has 
no refund policy, yet compensation is 
based, in whole or in part, on 
commissions, the private personnel 
service must give further information to 
the applicant in either the contract or a 
supplement to the contract that is also 
executed by the a pplicant and the 
private personnel service (i.e.. an 
addendum on the closing statement). It 
shall inform both the a pplicant and the 
employer in writing of the provisions of 
G.S. 95-47. 3 A governing fee refunds 
from employers: 

(5) If the private personnel service chooses 
to be liable for any potential fee 



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November 1, 1994 



1182 



PROPOSED RULES 



reimbursement under G.S. 95-47 .3 A, 
the service must provide to the 
a pplicant a clear description of how it 
provides the fee reimbursement. This 
description must be provided in either 
the contract or a supplement to the 
contract that is also executed by the 
a pplicant and the private personnel 
service (i.e.. an addendum on the 
closing statement). The following is 
sample language that will fulfill this 
requirement: 

REIMBURSEMENTS. If the applicant 
pays a service fee which is based, in 
whole or in part, on commissions and 
the a pplicant fails to earn at least 80 
percent of the compensation amount 
stated by the employer in the job order, 
the a pplicant may file a written 
complaint with the Department of 
Labor in accordance with G.S. 95- 
47.3A. (Name of private personnel 
service) shall only pay a reimbursement 
within 10 days of receiving a written 
final determination from the 
Department of Labor that a 
reimbursement is due. 



(e) Contract for Other Services. All contracts 
for other services with an applicant shall include 
the following: 

(1) A statement of what services will be 
provided and the fees for the various 
services; 

(2) A statement that the a pplicant becomes 
obligated to pay a fee once the 
service(s) is/are provided: 

(3) A statement that the private personnel 
service does not guarantee that the 
applicant will obtain employment as a 
result of its services. 

(f) Definitions. If the following undefined terms 
or provisions are used in a contract with an 
applicant, they shall be deemed to have the 
following meanings: 

(1) Acceptance - A position is accepted 
when the a pplicant begins work or 
agrees to begin work on a fixed date at 
an agreed remuneration for a specific 
employer. 

(2) Placement or Employment : All 
placements or employment shall be 
considered to be of an indefinite term 
unless clearly disclosed in the closing 
document. 
Fee or Service Charge - The amount 



charged the a pplicant for any services 
rendered by the private personnel 
service. 
(A) A fee or service charge for 
employment placement is due: 



til 



till 



When the a pplicant accepts 
employment as a result of a 
referral to an employer by the 
private personnel service within 
one year after the referral. 
When the applicant fails to secure 
or does not accept the position to 
which the applicant was originally 
referred, but 
position with 



accepts another 

the employer or 

with another employer to whom 

the first employer refers the 

a pplicant within one year as a 

result, directly or indirectly, of 

the original referral. 

(B) A fee or service charge for any other 

service is due after the service is 

rendered. 

(4) Fee Schedule - A percentage or set fee 
on file with, and clearly stated in a 
manner a pproved by. the Commissioner 
for all fees to be charged the a pplicant. 

(5) Base Salary or Earnings : A fixed 
compensation for services paid to a 
person on a regular basis. 

(6) Termination of Employment: 

(A) Termination by employer ; An 
employee may be considered at fault 
for the following reasons (also 
includes termination for cause, 
discharge for just cause, and similar 
language): 



til 
till 



01 



Willful absence from duty: 
Having been convicted, 
subsequent to his or her 
employment, of a crime reflecting 
upon his or her employment: 
Being impaired by alcohol or a 
controlled substance on the job: 
Being disorderly or insubordinate 
on the job: 

Violating written company 
policies or rules; 

Misrepresenting or withholding, 
without the knowledge of the 
licensee. any information 
regarding the applicant's ability to 
perform an essential core function 
with or without an accommodation. 
(B) Termination by employee - An 



ma 



liyl 



Ivl 



1183 



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9:15 



PROPOSED RULES 



employee has "just cause" (also 
includes reasonable cause, good 
cause, justification, and similar 
language) for voluntarily terminating 
employment within the length of time 
upon which the fee was based and is 
due a prorated refund of the fee £if a 
refund policy is applicable to the 
placement) when the conditions of 
employment were either knowingly 
misrepresented or withheld from the 
applicant by the private personnel 
service and said conditions would 
have, if known at the time of 
acceptance, caused the applicant to 
have reasonably refused employment. 
Such conditions of employment shall 
include, but not be limited to: 
(i) Probationary or trial periods; 
(ii) Bankruptcy or cessation of 

operation by. the employer; 
(iii) Failure to pay wages when due; 
(iv) Conditions at the place of 
employment which are injurious 
to the employee's health or safety; 
(v) Change in remuneration or lower 
status than was agreed to when 
the position was accepted. 
In calculating the prorated refund, the 
length of time upon which the fee was 
based will be determined in days and 
that number of days will be divided into 
the fee to calculate the fee paid per day- 
Then the amount of the refund will be 
calculated by multiplying the number of 
days worked by. the fee paid per day 
and subtracting the result of that 
multiplication from the total fee paid. 
For example, the calculation would be 
as follows: the fee paid by the 
applicant was three thousand six 
hundred and fifty dollars ($3.650) and 
the length of time upon which the fee 
was based was one year (beginning 
January 1} so the fee paid per day was 
ten dollars ($10): the a pplicant worked 
January 1 through June 30 or 181 days. 
The number of days worked times the 
fee paid per day is one thousand eight 
hundred and ten dollars ($1.810) which 
is subtracted from the fee three 
thousand six hundred and fifty dollars 
($3.650) for a refund due of one 
thousand eight hundred and forty 
dollars ($1.840). 



(g) Refund Policy. A private personnel service 
shall abide by. the refund policy (if any) stated on 
its contract by paving any refund due under the 
terms of the contract within 15 days of: 

(1) Receiving a request from any applicant: 
or 

(2) If the refund is in dispute, upon 
receiving a written final determination 
that a refund is due. Such 
determination may be issued by the 
Commissioner, an arbitrator, or a court 
of law. 

Statutory Authority G.S. 95-47.3; 95-47.4; 95- 
47.9. 

.0109 RECORDS 

(a) Job Orders or Job Specifications. Every 
private personnel service shall maintain records of 
job orders or job specifications for two years from 
the date on which the job order was last verified. 

(b) Licensees Going Out of Business. If a 
licensee goes out of business records must be 
maintained pursuant to this Rule. Those records 
must be available to the Commissioner and the 
licensee must inform the Commissioner in writing 
as to where its records will be kept. 

Statutory Authority G.S. 95-47.5; 95-47.9. 

.0110 ADVERTISING 

(a) Bona Fide Job Order Required. No licensee 
shall publish or cause to be published any 
advertisement soliciting persons to register for a 
specific job unless the licensee has on file a bona 
fide job order covering all known conditions of 
employment set forth in the advertisement. 

(b) False or Misleading Advertisements. No 
licensee shall circulate any false or misleading 
information by advertisements or make any 
statements known to be false to any a pplicant or 
employer. 

(c) Advertising of Salaries. All salaries, where 
the dollar amount is advertised, must be 
substantiated by the job order. 

Statutory Authority G. S. 95-47. 6; 95-47. 9. 

.0111 PROHD3ITED ACTS 

A private personnel service shall not engage in 
any of the following activities or conduct: 

(1) Accept an advance fee from an a pplicant 
for any of its services; 

(2) Coerce an a pplicant into accepting 
employment by a pplying or using duress. 



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1184 



PROPOSED RULES 



undue i n fl uence, fraud or 
misrepresentation. 

Statutory Authority G.S. 95-47.6; 95-47.9. 

.0112 PENALTY 

Any fine levied pursuant to G.S. 95-47.9(d) shall 
be in the amount of two hundred and fifty dollars 
($250.00). 

Statutory Authority G.S. 95-47.9. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Coastal Management 
intends to amend rules cited as 15A NCAC 7H 
.0308, .1705; 7M .0202 and adopt 7H .0106. 

1 he proposed effective date of this action is April 
1, 1995. 

1 he public hearing will be conducted at 4:00 
p.m. on November 17, 1994 at the Ramada Inn, 
1701 South Virginia Dare Trail, Kill Devil Hill, 
NC. 

Jxeason for Proposed Action: 
15A NCAC 7H .0106 - The adoption of this rule 
will establish a new subsection for definitions to 
apply to the various AECs. The proposed definition 
for structures is necessary to distinguish these 
forms of development from filling and other types 
of land disturbing activities. 
15A NCAC 7H .0308 - The proposed amendments 
reflect the amendments to the policy statement in 
15 A NCAC 7M. Many are editorial so as to use 
more appropriate and consistent terminology 
throughout. Several are being repealed upon 
finding that they are either no longer necessary, 
or, confusing. 

15 A NCAC 7H .1705 - The proposed amendments 
will establish the length of time that sandbags may 
remain in place and will allow the use of sandbags 
to protect septic systems when the erosion escarp- 
ment is within 20 feet. Several paragraphs are 
being repealed in an effort to remove those that 
have been found to be either unnecessary or 
confusing. The proposed changes are essentially 
a major rewrite of the CRC rules that pertain to 
the use of sandbags to protect structures in the 



Ocean Hazard AEC. 

15A NCAC 7M . 0202 - The proposed amendments 
are a major rewrite of the CRC "s policy on erosion 
responses along the oceanfront. They do not 
change the existing policy, but, they more clearly 
state the CRC's preferred responses to erosion and 
more directly address the beach nourishment 
option. 

Lsomment Procedures: All persons interested in 
this matter are invited to attend the public hearing. 
The Coastal Resources Commission will receive 
mailed written comments postmarked no later than 
December 1, 1994. Any person desiring to present 
lengthy comments is requested to submit a written 
statement for inclusion in the record of proceed- 
ings at the public hearing. Additional information 
concerning the hearing or the proposals may be 
obtained by contacting Rich Shaw, Division of 
Coastal Management, PO Box 27687, Raleigh, NC 
27611-7687, (919) 733-2293. 

CHAPTER 7 - COASTAL 
MANAGEMENT 

SUBCHAPTER 7H - STATE 

GUIDELINES FOR AREAS 

OF ENVIRONMENTAL CONCERN 

SECTION .0100 - INTRODUCTION 
AND GENERAL COMMENTS 

.0106 GENERAL DEFINITION 

For purposes of this Subchapter the term "struc- 
tures" includes, but is not limited to. buildings. 



bridges, roads, piers, wharves and docks (su pport- 
ed on piles), bulkheads, breakwaters, jetties, 
mooring pilings and buoys, pile clusters (dol- 
phins), navigational aids and elevated boat ramps. 

Statutory Authority G.S. 113A-107; 113A-113. 

SECTION .0300 - OCEAN 
HAZARD AREAS 

.0308 SPECIFIC USE STANDARDS 

FOR OCEAN HAZARD AREAS 

(a) Ocean Shoreline Erosion Control Activities: 

(1) Use Standards Applicable to all Erosion 

Control Activities: 

{A) — Pr e f e rr e d — e rosion control — m e asur es 

ohall b e boaoh nourishm e nt proj e ots 

and r e looation. Alternativ e approach 

ee will bo allowed wh e r e th e applicant 



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eaa — show — that — s uoh — measure s — ape- 
necessary to provide adequate proteo 
tie* — Comprehensive shoreline man 
agomcnt s hall bo preferred over small 
scale methods. 

(A) All oceanfront erosion response activ- 
ities shall be consistent with the gen- 
eral policy statements in 15A NCAC 
7M .0200. 

(B) Erosion Permanent erosion control 
structures which may cause significant 
adverse impacts on the value and 
enjoyment of adjacent properties or 
public access to and use of the ocean 
beachi and, therefore, are prohibited. 
Such structures include, but are not 
limited to: wooden bulkheads; sea- 
walls; peek — ef — rubble revetments; 
wooden, — metal, — concrete — ef — peek 
jetties; groins and breakwatersf 
concrete filled — s andbag s ; — and — ti*e 
structures . 

(C) Rules concerning the use of 
oceanfront erosion control response 
measures apply to all oceanfront 
properties without regard to the size 
of the structure on the property or the 
date of its construction. 

{©) — Erosion control measures which will 
interfere with public acces s to and use 
of the ocean beaches arc prohibited. 

(D) {E) All permitted oceanfront erosion 
control activities, response projects, 
other than beach bulldozing? and 
temporary placement of sandbag 
structures^ or artificial seaweed shall 
demonstrate sound engineering for 
their planned purpose^ and shall be 
certified by a licensed engineer prior 
to being permitted. 

(E) {F) Shoreline erosion control response 
projects shall not be constructed in 
beach or estuarine areas that sustain 
substantial habitat for important fish 
and wildlife species unless adequate 
mitigation measures are incorporated 
into project design, as set forth in 
Rule .0306(i) of this Section. 

(F) (G) Project construction shall be 
timed to have minimum significant 
minimize adverse effect effects on 
biological activity. 

{H) — The applicant shall notify all littoral 
property owners within 100' of the 
boundaries of the project site and no 



permit shall be i s sued until the prop 
erty ownor(s) has s igned th e notice 
fo rm or until a reasonable effort has 
boon made to serve notice on the 
ownor(s) by regi s tered or certified 

fF) All oceanfront ero s ion control pro 

jeets — shall — be — consistent — with — the 
general policy s tatements in Subchap 
tor 7M .0200. 
(G) {J) Prior to beginning completing any 
beach nouri s hment or s tructural ero- 
sion control response project, all 
exposed remnants of or debris from 
failed erosion control structures must 
be removed by the permittee. 
{K) — All permitted erosion control device s 
s hall bo marked s o as to allow identi 
fication for monitoring and potential 
cleanup purpose s . 
(H) {fc) Erosion control structures that 
would otherwise be prohibited by 
these standards may be permitted on 
finding that: 
(i) the erosion control structure is 
necessary to protect a bridge 
which provides the only existing 
road access to a substantial popu- 
lation on a barrier island; that is 
vital to public safety; and is immi- 
nently threatened by erosion; 
(ii) the preferred erosion control 
response measures of relocation, 
beach nourishment or temporary 
stabilization are not adequate to 
protect public health and safety; 
and 
(iii) the proposed erosion control 
measure structure will have no 
adverse impacts on adjacent prop- 
erties in private ownership and 
will have minimal impacts on 
public use of the beach. 
(I) fM) Structures that would otherwise 
be prohibited by these standards may 
also be permitted on finding that: 
(i) the structure is necessary to pro- 
tect an historic site of national 
significance, which is imminently 
threatened by shoreline erosion; 
and 
(ii) the preferred erosion control 
methods res ponse measures of 
relocation, beach nourishment or 
temporary stabilization are not 



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1186 



PROPOSED RULES 



adequate and practicable to pro- 
tect the site; and 

(iii) the structure is limited in extent 
and scope to that necessary to 
protect the site; and 

(iv) any permit for a structure under 
this Part fM) £T) may be issued 
only to a sponsoring public agen- 
cy for projects where the public 
benefits clearly outweigh the short 
or long range adverse impacts. 
Additionally, the permit must 
include conditions providing for 
mitigation or minimization by that 
agency of any significant and 
unavoidable adverse impacts on 
adjoining properties and on public 
access to and use of the beach . 
(J) {N) Structures that would otherwise 
be prohibited by these standards may 
also be permitted on finding that: 

(i) the structure is necessary to main- 
tain an existing commercial navi- 
gation channel of regional signifi- 
cance within federally authorized 
limits; and 

(ii) dredging alone is not practicable 
to maintain safe access to the 
affected channel; and 

(iii) the structure is limited in extent 
and scope to that necessary to 
maintain the channel; and 

(iv) the structure will not result in 
substantial adverse impacts to 
fisheries or other public trust 
resources; and 

(v) any permit for a structure under 
this Part {N) {J} may be issued 
only to a sponsoring public agen- 
cy for projects where the public 
benefits clearly outweigh the short 
or long range adverse impacts. 
Additionally, the permit must 
include conditions providing for 
mitigation or minimization by that 
agency of any significant and 
unavoidable adverse impacts on 
adjoining properties and on public 
access to and use of the beach . 
(K) Proposals for experimental erosion 
response measures will be considered 
on a case-bv-case basis to determine 
consistency with 15A NCAC 7M 
.0200 and general and specific use 
standards within this Section. 



(2) Temporary Erosion Control Structures: 

(A) Permittable temporary erosion control 
structures shall be limited to sandbags 
placed above mean high water and 
parallel to the shore, include only the 
following; 

fi) Bulkheads or similar structures 

made of sandbag s or comparable 
mate rials; 

(it) Low sandbag groins or sandbag 

sediment trapping structures above 
mean high water provided they 
are continuously buried by suit - 
able sand from an outside source. 

(B) Temporary erosion control structures 
as defined in Subpart £2}(A) of this 
Paragraph may be used only to pro- 
tect imminently threatened structures. 
Normally, a structure will be consid- 
ered to be imminently threatened if its 
foundation septic system, or right-of- 
way in the case of roads, is less than 
20 feet away from the erosion scarp. 

{€) — Shore parallel temporary erosion 

control structures — must not extend 
more than 20 foot past the end of the 
structure to be protected. The erosion 
control s tructure also must not come 
clo s er than 15 foot to tho applicant' s 
side property lino s unless the applica ' 
tion is part of a joint project with 
neighbor s trying to protect s imilarly 
threatened structures of unic es the 
applicant has written permission from 

the affected property owner. The 

landward — side — e# — s«efl — tempo rary 
erosion control s tructures s hall not be 
located more than 20 feet s eaward of 
the property to be protected. 

(©) — If a temporary erosion control struc 
ture interferes with public access and 
use of the ocean beach, or if it re 
quires burial but remains continuously 
expo s ed for more than six months it 
mu s t be removed by the permit tee 
within 30 day s of notification by the 
Coastal Resources Commission or its 

representatives. la — addition, — the 

permittee s hall be respon s ible for th e 
removal of remnants of all or portions 
ef- — the — temporary — erosion — control 
s tructure damaged by s torm s or con 
tinuod erosion. 

{E) — Once the temporary erosion control 
structure is determined to be unnccos 



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sory duo to a natural reversal of the 
eroding condition, relocation of the 
threatened structure, or adoption of an 
alternate ero s ion control method, any 
remnants of the temporary ero s ion 
control structure expo s ed s eaward of 
or on the beach must bo removed by 
the permittee within 30 days of notifi 
cation by the Coa s tal Resource s Com 
mi s sion or its representatives. 

{F) — Temporary s andbag — bulkhead s 

pcrmittablc by this Rule s hall be of a 
size and configuration consistent with 

their — allowed — purpo s e. Such 

s tructures — may — be — appropriately 
anchored and shall not exceed a width 
at their base of throe sandbag s or a 
maximum of fifteen feet. — In no case 
shall the structure extend below the 
mean high water line. 

(C) Temporary erosion control structures 
may be used to protect only the prin- 
cipal structure and its associated 
septic system, but not such appurte- 
nances as gazebos, decks or any 
amenity that is allowed as an excep- 
tion to the erosion setback require- 
ment. 

(D) Temporary erosion control structures 
may be placed seaward of a septic 
system when there is no alternative to 
relocate it on the same or adjoining 
lot so that k is landward of or in line 
with the structure being protected. 

(E) Temporary erosion control structures 
must not extend more than 20 feet 
past the sides of the structure to be 
protected. The landward side of such 
temporary erosion control structures 
shall not be located more than 20 feet 
seaward of the structure to be protect- 
ed or the right-of-way in the case of 
roads. 

(F) A temporary erosion control structure 
may remain in place for up to two 
years after the date of approval if it is 
protecting a structure with a total 
floor area of 5000 sq. fL or less, or, 
for up to five years if the structure 
has a total floor area of more than 
5000 sq. ft. For those located in 
communities actively pursuing a 
beach nourishment project, they may 
remain in place for period of up to 
five years (regardless of the size of 



structure), or. until the beginning of 
the nourishment project, whichever is 
shorter. The property owner will be 
responsible for removal of the struc- 
ture. For purposes of thjs Rule, a 
community is considered to be active- 
ly pursuing a beach nourishment 
project when a U.S. Army Corps of 
Engineers' Beach Nourishment Re- 
connaissance Study has deemed the 
project worthy of further consider- 
ation. 
(G) Once the temporary erosion control 
structure is determined to be unneces- 
sary due to relocation or removal of 
the threatened structure, h must be 
removed by the property owner within 
30 days. 
(Tf) Removal of temporary erosion control 
structures may not be required if they 
are covered by. dunes with vegetation 
sufficient to be considered stable and 
natural. 
(I) The property owner shall be responsi- 
ble for the removal of remnants of all 
portions of any damaged temporary 
erosion control structure- 
CD Sandbags used to construct temporary 
erosion control structures shall be tan 
in color and three to five feet wide 
and seven to 15 feet long when mea- 
sured flat. Base width of the struc- 
ture shall not exceed 20 feet, and the 
height shall not exceed six feet. 
(K) Soldier pilings and other types of 
devices to anchor sandbags shall not 
be allowed- 
ly) The use of sandbags can be a pproved 
only once on any property regardless 
of ownership. 
(M) Existing sandbag structures can be 
maintained provided that the permitted 
dimensions are not exceeded. 

0) Sand Trapping Devices: Low inten s ity 

off shore passive sand trapping device s 
may be permitted provided: 
{A) — A minimum of two s ign s no smaller 
than 12 inches x 1 8 inches will be 
placed and maintained on polos on the 
ocean beach at least 6' above ground 
level that will indicate to fisherme n 
s urfers and bather s that the s tructure s 
or device s are present offshore. 
(B) — The structures or device s will bo 
removed at the expense of the appli 



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1188 



PROPOSED RULES 



cant s hould they be documented as a 
nui s ance to private property or to the 
public well being. "Nuisance" will be 
defined as any interference with rca 
s onable use of public trust areas or 
other lands within the ocean hazard 
system AECs that arc subject to pub 
lie trust use. 
{€) — The — structures — ©f — devices — w+H — be 
aligned no closer than 4 50 feet sea 
ward of the first line of s table natural 
vegetation or 300 feet from the mean 
high water line, whichever i s further 
s eaward. 

(3) (4) Beach Nourishment. Sand used for 
beach nourishment should be compati- 
ble with existing grain size and type. 
Sand to be used for beach nourishment 
shall be taken only from those areas 
where the resulting environmental 
impacts will be minimal. 

(4) (5)Beach Bulldozing. Beach bulldozing 
(defined as the process of moving natu- 
ral beach material from any point sea- 
ward of the first line of stable vegeta- 
tion to create a protective sand dike or 
to obtain material for any other pur- 
pose) is development and may be per- 
mitted as an erosion control measure if 
the following conditions are met: 

(A) The area on which this activity is 
being performed must maintain a 
slope of adequate grade so as to not 
endanger the public or the public's 
use of the beach and should follow 
the pre-emergency slope as closely as 
possible. The movement of material 
utilizing a bulldozer, front end loader, 
backhoe, scraper, or any type of earth 
moving or construction equipment 
should not exceed one foot in depth 
measured from the pre-activity surface 
elevation; 

(B) The activity must not exceed the 
lateral bounds of the applicant's prop- 
erty unless he has permission of the 
adjoining land owner(s); 

(C) Movement of material from seaward 
of the low water line will require a 
CAMA Major Development and State 
Dredge and Fill Permit; 

(D) The activity must not significantly 
increase erosion on neighboring prop- 
erties and must not have a significant 
adverse effect on important natural or 



cultural resources; 
(E) The activity may be undertaken to 
protect threatened on-site waste dis- 
posal systems as well as the threat- 
ened structure's foundations. 

(b) Dune Establishment and Stabilization. 
Activities to establish dunes shall be allowed so 
long as the following conditions are met: 

(1) Any new dunes established shall be 
aligned to the greatest extent possible 
with existing adjacent dune ridges and 
shall be of the same general configura- 
tion as adjacent natural dunes. 

(2) Existing primary and frontal dunes shall 
not, except for beach nourishment and 
emergency situations, be broadened or 
extended in an oceanward direction. 

(3) Adding to dunes shall be accomplished 
in such a manner that the damage to 
existing vegetation is minimized. The 
filled areas will be immediately replant- 
ed or temporarily stabilized until plant- 
ing can be successfully completed. 

(4) Sand used to establish or strengthen 
dunes must be of the same general 
characteristics as the sand in the area in 
which it is to be placed. 

(5) No new dunes shall be created in inlet 
hazard areas. 

(6) Sand held in storage in any dune, other 
than the frontal or primary dune, may 
be redistributed within the AEC provid- 
ed that it is not placed any farther 
oceanward than the crest of a primary 
dune or landward toe of a frontal dune. 

(7) No disturbance of a dune area will be 
allowed when other techniques of con- 
struction can be utilized and alterative 
site locations exist to avoid unnecessary 
dune impacts. 

(c) Structural Accessways: 

(1) Structural accessways shall be permitted 
across primary dunes so long as they 
are designed and constructed in a man- 
ner which entails negligible alteration 
on the primary dune. Structural ac- 
cessways may not be considered threat- 
ened structures for the purpose of Para- 
graph (a) of this Rule. 

(2) An accessway shall be conclusively 
presumed to entail negligible alteration 
of a primary dune: 

(A) The accessway is exclusively for 
pedestrian use; 

(B) The accessway is less than six feet in 



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PROPOSED RULES 



width; and 

(C) The accessway is raised on posts or 
pilings of five feet or less depth, so 
that wherever possible only the posts 
or pilings touch the frontal dune. 
Where this is deemed impossible, the 
structure shall touch the dune only to 
the extent absolutely necessary. In no 
case shall an accessway be permitted 
if it will diminish the dune's capacity 
as a protective barrier against flood- 
ing and erosion; and 

(D) Any areas of vegetation that are dis- 
turbed are revegetated as soon as 
feasible. 

(3) An accessway which does not meet Part 
(2) (A) and (B) of this Paragraph shall 
be permitted only if it meets a public 
purpose or need which cannot otherwise 
be met and it meets Part (2)(C) of this 
Paragraph. Public fishing piers shall 
not be deemed to be prohibited by this 
Rule, provided all other applicable 
standards are met. 

(4) In order to avoid weakening the protec- 
tive nature of primary and frontal dunes 
a structural accessway (such as a 
"Hatteras ramp") should be provided 
for any off-road vehicle (ORV) or 
emergency vehicle access. Such 
accessways should be no greater than 
10 feet in width and should be con- 
structed of wooden sections fastened 
together over the length of the affected 
dune area. 

(d) Construction Standards. New construction 
and substantial improvements (increases of SO 
percent or more in value on square footage) to 
existing construction shall comply with the follow- 
ing standards: 

(1) In order to avoid unreasonable danger 
to life and property, all development 
shall be designed and placed so as to 
minimize damage due to fluctuations in 
ground elevation and wave action in a 
100 year storm. Any building con- 
structed within the ocean hazard area 
shall comply with the North Carolina 
Building Code including the Coastal 
and Flood Plain Construction Stand- 
ards, Chapter 34, Volume I or Section 
39, Volume 1-B and the local flood 
damage prevention ordinance as re- 
quired by the National Rood Insurance 
Program. If any provision of the build- 



ing code or a flood damage prevention 
ordinance is inconsistent with any of 
the following AEC standards, the more 
restrictive provision shall control. 

(2) All structures in the ocean hazard area 
shall be on pilings not less than eight 
inches in diameter if round or eight 
inches to a side if square. 

(3) All pilings shall have a tip penetration 
greater than eight feet below the lowest 
ground elevation under the structure. 
For those structures so located on the 
primary dune or nearer to the ocean, 
the pilings must extend to five feet 
below mean sea level. 

(4) All foundations shall be adequately 
designed to be stable during applicable 
fluctuations in ground elevation and 
wave forces during a 100 year storm. 
Cantilevered decks and walkways shall 
meet this standard or shall be designed 
to break-away without structural dam- 
age to the main structure. 

Statutory Authority G.S. 113A-107(a); 
113A-107(b); 113A-113(b)(6)a.,h,d.; 113A-124. 

SECTION .1700 - GENERAL PERMIT 

FOR EMERGENCY WORK REQUIRING 

A CAMA AND/OR A DREDGE AND 

FILL PERMIT 

.1705 SPECD7IC CONDITIONS 

(a) Temporary Erosion Control Structures in the 
Ocean Hazard AEC. 



m- 



Permittablo 



control 



temporary erosion 

structures include only the following: 

(A) — bulkheads or s imilar s tructure s made 

of s andbags or comparable materials; 

(B) — lew — s andbag — groins — ©f — s andbag 

s ediment — trapping — structures — above 

mean high water provided they arc 

continuously buried by suitable sand 

from an outside source. 

(1) Permittable temporary erosion control 
structures shall be limited to sandbags 
placed above mean high water and 
parallel to the shore. 

(2) Temporary erosion control structures as 
defined in Subparagraph (1) of this 
Rule Paragraph may be used only to 
protect imminently threatened 
structures. Normally, a structure will 
be considered to be imminently 
threatened if the — foundation its 



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1190 



PROPOSED RULES 



foundation, septic system, or, right-of- 
way in the case of roads, is less than 20 
feet away from the erosion scarp. 

(3) Shore parallel temporary erosion 

control structures mu a t not extend more 
than — 30 — feet — past — the — end — of the 
s tructure to be protected. — The erosion 
control s tructure abo must not come 
clo s er than 15 feet to the applicant's 

side property linos unless the 

application i 9 part of a joint project 
with — neighbor s — trying — te — protect 
similarly threatened structures or unices 
the applicant has written pcrmissi efi 
from the affected property owner. — The 
landward — side — ef- — sueh — temporary 
ero s ion control s tructures shall not be 
located more than 20 feet seaward of 
the property to be protected. 

{A) If a temporary erosion control structure 

interferes with public access and u s e of 
the ocean beach, or if it requires burial 
but remains continuou s ly expo s ed for 
more — than — si* — month s , — it — mu s t be 
removed by the permittee within 30 
days — ef- — notification — by — the — Coastal 
Resources Commission ef its 



m- 



repre s entatives. Ja — addition, — the 

permittee shall be respon s ible for the 

removal of remains of all or portions of 

the temporary erosion control structure 

damaged — by — storms — ef — continued 

erosion. 

Once the temporary — ero s ion control 

structure is determined te be 



unneces s ary due to a natural reversal of 
the eroding condition, relocation of the 
threatened s tructure, or adoption of an 
alternate erosion control method, any 
remnants — ef — the — temporary — ero s ion 
control s tructure expo s ed seaward of or 
on the beach mu s t be removed by the 
permittee within 30 day s of notification 
by the Coastal Resources Commi ss ion 
or its representatives. 

f6) Temporary s andbag bulkheads 

permittablc by thi s Rule shall b e of a 
s ize and configuration consistent with 
their allowed purpo s e. — Such s tructures 
may — be — appropriately — anchored — and 
shall not exceed a width at their base of 
three sandbag s or a maximum of 15 

feet: In no case shall the structure 

extend below the mean high water line. 

f?) Excavation below mean high water in 



£3} 



14} 



£5} 



16} 



the Ocean Hazard AEC may be allowed 
to obtain material to fill s andbags used 
for emergency protection. 

Temporary erosion control structures 
may be used to protect only the 
principal structure and its associated 
septic system, but not such 
a ppurtenances as gazebos, decks or any 
amenity that is allowed as an exception 
to the erosion setback requirement- 
Temporary erosion control structures 
may be placed seaward of a septic 
system when there is no alternative to 
relocate it on the same or adjoining lot 
so that it is landward of or in line with 
the structure being protected. 
Temporary erosion control structures 
must not extend more than 20 feet past 
the sides of the structure to be 
protected. The landward side of such 
temporary erosion control structures 
shall not be located more than 20 feet 
seaward of the structure to be protected 
or the right-of-way in the case of roads. 



The permittee shall be responsible for 
the removal of remnants of all or 
portions of any damaged temporary 
erosion control structure. 

(7) A temporary erosion control structure 
may remain in place for up to two 
years after the date of a pproval if" it is 
protecting a structure with a total floor 
area of 5000 sg^ fL or less, or. for up 
to five years if the structure has a total 
floor area of more than 5000 sq. ft. 
For those located in communities 
actively pursuing a beach nourishment 
project, they may remain in place for a 
period of up to five years (regardless of 
the size of structure), or. until the 
beginning of the nourishment project, 
whichever is shorter. For purposes of 
this Rule, a community is considered to 
be actively pursuing a beach 
nourishment project when a U.S. Army 
Corps of Engineers' Beach 
Nourishment Reconnaissance Study has 
deemed the project worthy of further 
consideration. 

(8) Once the temporary erosion control 
structure is determined to be 
unnecessary due to relocation or 
removal of the threatened structure, it 
must be removed by the permittee 
within 30 days. 



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(9) Removal of temporary erosion control 
structures may not be required if they 
are covered by dunes with vegetation 
sufficient to be considered stable and 
natural. 

(10) Sandbags used to construct temporary 
erosion control structures shall be tan in 
color and three to five feet wide and 
seven to .15 feet long when measured 
flat. Base width of the structure shall 
not exceed 20 feet, and the height shall 
not exceed six feet. 

(11) Soldier pilings and other types of 
devices to anchor sandbags shall not be 
allowed. 

(12) Excavation below mean high water in 
the Ocean Hazard AEC may be allowed 
to obtain material to fill sandbags used 
for emergency protection. 

(13) The use of sandbags can be a pproved 
only once on any property regardless of 
ownership. 

(14) Existing sandbag structures can be 
maintained provided that the permitted 
dimensions are not exceeded. 

(b) Erosion Control Structures in the Estuarine 
Shoreline, Estuarine Waters, and Public Trust 
AECs. Work permitted by this general permit will 
be subject to the following limitations: 

(1) no work will be permitted other than 
that which is necessary to reasonably 
protect against or reduce the imminent 
danger caused by the emergency and/or 
or to restore the damaged property to 
its condition immediately before the 
emergency; 

(2) the erosion control structure will be 
located no more than 20 feet waterward 
of the endangered structure; 

(3) fill material used in conjunction with 
emergency work for storm or erosion 
control in the Estuarine Shoreline, 
Estuarine Waters and Public Trust 
AECs will be obtained from an upland 
source. 

(c) Protection, Rehabilitation, or Temporary 
Relocation of Public Facilities and/or or 
Transportation Corridors. 

(1) Work permitted by this general permit 

will be subject to the following 

limitations: 

(A) no work will be permitted other than 

that which is necessary to reasonably 

protect against or reduce the imminent 

danger caused by the emergency 



and/or or to restore the damaged 
property to its condition immediately 
before the emergency; 

(B) the erosion control structure will be 
located no more than 20 feet 
waterward of the endangered 
structure; 

(C) any fill materials used in conjunction 
with emergency work for storm or 
erosion control shall be obtained from 
an upland source except that dredging 
for fill material to protect public 
highways or other structures of public 
interest will be considered on a 
case-by-case basis; 

(D) all fill materials or structures 
associated with temporary relocations 
which are located within Coastal 
Wetlands, Estuarine Water, or Public 
Trust AECs shall be removed after 
the emergency event has ended and 
the area restored to pre-disturbed 
conditions. 

(2) This permit only authorizes the 
immediate protection or temporary 
rehabilitation or relocation of existing 
public facilities. Long-term 

stabilization or relocation of public 
facilities should be consistent with local 
governments' post-disaster recovery 
plans and policies which are part of 
their Land Use Plans. 

Statutory Authority G.S. 113-229(cl); 
U3A-107(a),(b); 113A-1 13(b); U3A-U8.1. 

SUBCHAPTER 7M - GENERAL POLICY 

GUIDELINES FOR THE COASTAL 

AREA 

SECTION .0200 - SHORELINE 
EROSION RESPONSE POLICIES 

.0202 POLICY STATEMENTS 

(a) Pursuant to Section 5, Article 14 of the 
North Carolina Constitution, proposals for 
shoreline erosion control response projects shall 
avoid losses to North Carolina's natural heritage. 
All means should be taken to identify and develop 
control response measures that will not adversely 
affect estuarine and marine productivity. The 
public right to use and enjoy the ocean beaches 
must be protected. The protected uses include 
traditional recreational uses (such as walking, 
swimming, surf-fishing, and sunbathing) as well as 



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commercial fishing and emergency access for 
beach rescue services. Private property rights to 
oceanfront properties including the right to protect 
that property in ways that are consistent with 
public rights should be protected. 

(b) Nonstructural Erosion response measures 
designed to minimize the loss of private and public 
resources to erosion should be ate — preferred 
s olution s — te — erosion — problem s — provided — s uch 
measures — afe economically, socially, ef and 
environmentally justified. Preferred nonstructural 
control response measures for shoreline erosion 
shall include but not be limited to AEC rules, land 
use planning and land classification, establishment 
of building setback lines, building relocation. 
subdivision regulations and management of 
vegetation. When structural control s arc s elected 
in developing alternative plans for erosion control 
a clear rationale should be presented and tho s e 
structural control measures which have the lca3t 
effect on natural processes should be given prime 

consideration. — Note: For the purpo s e of thi s 

policy beach nourishment projects arc included 
with traditional structural control measures s uch as 



for thi 



that beach 



revetments. — The reason tor tni s is 
nouri s hment projects are land disturbing activities 
that can drastically alter the estuary (as a borrow 
area), the barrier island (through which pipelines 
will be laid) and the beach and ncarshore (through 
the replacement of aquatic bottoms with dry sand). 

(e) — Efforts to permanently s tabilize the location 
of the shoreline by mas s ive s eawalls and similar 
protection devices which do not preserve public 
trust rights should not be allowed. — The attendant 
environmental damages and public economic costs 
are unacceptably high. — Temporary measures to 
counteract erosion, such as beach nourishment, 
sandbag bulkheads, and beach pushing, s hould be 
allowed, but only to the extent neces s ary to protect 
property for a short period of time until threatened 
structures may be relocated or until the effects of 
a short term erosion event arc reversed. — In all 
eases, temporary stabilization measures must be 
compatible with public use and enjoyment of the 
beach. 

(c) The replenishment of sand on ocean beaches 
can provide storm protection and a viable alterna- 
tive to allowing the ocean shoreline to migrate 
landward threatening to degrade public beaches 
and cause the loss of public facilities and private 
property. Experience in North Carolina and other 
states has shown that beach restoration projects can 
present a f easible alternative to the loss or massive 
relocation of oceanfront development. In light of 
this experience, beach restoration and sand re- 



nourishment and disposal projects may be allowed 
when: 

(1) Erosion threatens to degrade public 
beaches and to damage public and 
private properties: 

(2) Beach restoration, renourishment or 
sand disposal projects are determined to 
be socially and economically feasible 
and cause no significant adverse envi- 
ronmental impacts; 

(3) The project is determined to be consis- 
tent with state policies for shoreline 
erosion response and state use standards 
for Ocean hazard and Public Trust 
Waters Areas of Environmental Con- 



cern and the relevant rules and guide- 



lines of state and federal review agen- 
cies. 
When the conditions set forth in this Paragraph can 
be met, the Coastal Resources Commission sup- 
ports, within overall budgetary constraints, state 
financial participation in Beach Erosion Control 
and Hurricane Wave Protection projects that are 
cost-shared with the federal government and 
affected local governments pursuant to the federal 
Water Resources Development Act of 1986 and the 
North Carolina Water Resources Development 
Program (G.S. 143-215.70-73). 

(d) The following are required with state in- 
volvement (funding or sponsorship) in beach 
restoration and sand renourishment projects: 

(1) The entire restored portion of the beach 
shall be in permanent public ownership: 

(2) It shall be a local government responsi- 



bility to provide adequate parking, 
public access, and services for public 
recreational use of the restored beach. 



(e) Temporary measures to counteract erosion, 
such as the use of sandbags and beach pushing, 
should be allowed, but only to the extent necessary 
to protect property for a short period of time until 
threatened structures may be relocated or until the 
effects of a short-term erosion event are reversed. 
In all cases, temporary stabilization measures must 
be compatible with public use and enjoyment of 
the beach. 

(f) — The following are required with s tate in 
volvcmcnt (funding or sponsorship) in oceanfront 
erosion control projects! 

(4-) Aa — assessment — consistent — with — the 

North Carolina Environmental Policy 
Act (SEPA) shall determine that there 
will be no unacceptable cnvironmc Btal 
impacts; 
$¥) The entire restored portion of the beach 



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s hall bo in permanent public owncrahip; 

@) It ahull bo a local government rcspon s i 

bility — to — provide — adequate — parking, 
public aeoo83, and services for public 
recreational use of the restored beach; 

{4) State expenditures are to bo used only 

for maintenance of a public beach and 

not to protect endangered seawall or 

other erosion abatement structures. 

(f) Efforts to permanently stabilize the location 

of the ocean shoreline with seawalls, groins. 

shoreline hardening, sand tra pping or similar 



protection devices shall not be allowed except 



when the Coastal Resources Commission deter- 



mines there is an overriding need to protect the 



public interest. 



{d) £g} The State of North Carolina will encour 
consider innovative institutional programs and 
scientific research that will provide for effective 
management of coastal shorelines. The develop - 
ment of Innovativ e innovative measures wbieb 
may bo developed in the future that will lessen or 



slow the effects of erosion while minimizing the 
adverse impacts on the public beach and on nearby 
properties should be is encouraged. 

(e) fh) The planning, development, and imple- 
mentation of erosion control projects will be 
coordinated with appropriate planning agencies, 
affected governments and the interested public. 
Maximum efforts will be made by the state to 
accommodate the interest of each interested party 
consistent with the project's objectives. Local, 
state, and federal government activity in the 
coastal area should reflect an awareness of the 
natural dynamics of the ocean front. Government 
policies should not only address existing erosion 
problems but should aim toward minimizing future 
erosion problems. Actions required to deal with 
erosion problems are very expensive. In addition 
to the direct costs of erosion abatement measures, 
many other costs, such as maintenance of projects, 
disaster relief, and infrastructure repair will be 
borne by the public sector. Responses to the 
erosion should be designed to limit these public 
costs. 

{g) £ii The state will promote education of the 
public on the dynamic nature of the coastal zone 
and on effective measure to cope with our ever 
changing shorelines. 

Statutory Authority G.S. 113A-102(b); 113A-107; 
113A-124; 16 U.S. a Sec. 1453 (12). 

****************** 



Notice is hereby given in accordance with G.S. 
150B-21. 2 that the DEHNR - Parks and Recreation 
intends to adopt rules cited as 15A NCAC 12K 
.0101 - .0111. 

1 he proposed effective date of this action is April 
1, 1995. 

1 he public hearing will be conducted at 7:00 
p.m. on the following dates and locations: 

January 23, 1995 

Raleigh - Ground Floor Hearing Room 

Archdale Building 

January 24, 1995 

Asheville - DEHNR Regional Office 

59 Woodfin Place 

January 25, 1995 

Winston-Salem - DEHNR Regional Office 
585 Waughtown Street 

January 26, 1995 

Charlotte - County Government Complex 

January 30, 1995 

Elizabeth City - Knobbs Creek Recreation Center 
200 East Ward Street 

January 31, 1995 

Wilmington - DEHNR Regional Office 
127 Cardinal Drive Extension 

iXeason for Proposed Action: lb establish guide- 
lines for a local government matching grants 
program for local park and recreation purposes 
from the newly established Parks and Recreation 
Trust Fund, G.S. 113-44.15. 

(comment Procedures: Any person requiring 
information may contact Mr. John Poole, N. C. 
Division of Parks and Recreation, Archdale Build- 
ing, P.O. Box 27687, Raleigh, N.C. 27611, 
telephone (919) 733-4181. Written comments may 
be submitted to the above address no later than 
February 1, 1995. 

hjditor's Note: These Rules were filed as tempo- 
rary adoptions effective November 1, 1994 for a 
period of 180 days or until the permanent rule 



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1194 



PROPOSED RULES 



becomes effective, whichever is sooner. 

CHAPTER 12 - PARKS AND RECREATION 
AREA RULES 

SUBCHAPTER 12K - PARKS AND 

RECREATION TRUST FUND GRANTS 

FOR LOCAL GOVERNMENT 

SECTION .0100 - GENERAL PROVISIONS 

.0101 PURPOSE 

The Parks and Recreation Trust Fund (PARTF), 
pursuant to G.S. 1 13-44. 15(b)(2), is authorized to 
establish a matching grants program for qualified 
local governmental units for local park and recre- 
ation purposes. Annually. 20 percent of funds 
appropriated to the Department of Environment. 
Health, and Natural Resources (Department) from 
PARTF will be allocated to local governmental 
units on a dollar-for-dollar basis. Grants will be 
awarded using a project priority scoring system. 
The purpose of this Section is to set forth proce- 
dures to govern the program. 

Statutory Authority G.S. 113-44.15. 

.0102 ELIGD3LE APPLICANTS 

All county governments and incorporated munici- 
palities of the State of North Carolina and other 
legally constituted local governmental entities of 
the State with the legal responsibility for the 
provision of recreation sites and facilities for the 
use and benefit of the general public are eligible to 
submit applications. 

(1) Multiple cities and counties may apply 
jointly for a project. 

(2) School districts may submit a joint appli- 
cation with an incorporated city or county 
for funding of facilities located on prop- 
erty owned by the school district. This 
application will result in the school dis- 
trict and county or city being jointly 
responsible for compliance with all rules 
pertaining to operation and maintenance 
of PARTF assisted facilities developed on 
the land. 

(3) Unincorporated areas or communities 
must seek county sponsorship of their 
project to be eligible. 

(4) All applications submitted to the Depart- 
ment must be approved by the local 
governing body through a resolution or 
ordinance and funding requested by the 
chief elected or appointed official (city or 



county manager, etc.). 
(5) A grantee with an active PARTF project 
by the closing date of an announced 
application submission period shall be 
ineligible for funds for the fiscal year 
covered by the submission period. 

Statutory Authority G.S. 113-44.15. 

.0103 FUNDING CYCLE 

Funding cycle dates will be annually established 
by the Department. 

Statutory Authority G.S. 113-44.15. 

.0104 APPLICATION SCHEDULE 

(a) A request for proposals, which announce the 
funding cycle and participation requirements, is 
distributed statewide to all mayors, chairpersons of 
county commissioners, councils of governments 
and local park and recreation directors. 

(b) Notification of Intent (NOD forms and 
a pplications are to be submitted to the regional 
park and recreation consultant serving the app li- 
cant. 

(c) NOIs and a pplications shall be submitted 
according to requirements specified in this Rule 
and the request for proposals. 

(d) State Clearinghouse environmental review 
comments made as a result of NOI review must be 
addressed in the application. 

Statutory Authority G.S. 113-44.15. 

.0105 EVALUATION OF APPLICATIONS 

(a) All applications will be evaluated and ranked 
based on criteria patterned after the Open Project 
Selection Process established for the Land and 
Water Conservation Fund. Each eligible a pplicant 
shall be evaluated on the information provided in 
the application and in accordance with the estab- 
lished PARTF project priority scoring system. 

(b) The regional park and recreation consultants 
will review and evaluate local government applica- 
tions at the regional level before forwarding 
applications to the Department's PARTF Office. 

(c) PARTF program staff will review, evaluate 
and rank all project applications based on the 
Department's approved PARTF project priority 
scoring system. 

(d) The PARTF program staff will recommend 
a list of projects for funding to the LWCF/PARTF 
Review Committee. The LWCF/PARTF Review 
Committee's membership will be appointed by the 
Director of the North Carolina Division of Parks 



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and Recreation and should include representation 
from a broad range of recreation interests, includ- 
ing representation from outside state government 
as well as minority and disabled interests. 

(e) During each funding cycle, the 

LWCF/PARTF Review Committee will review the 
evaluations, recommendations and other relevant 
data prepared by. the applicant and the PARTF 
program staff. The Committee will recommend a 
list of projects to the Department for funding. 

Statutory Authority G.S. 113-44.15. 



GRANT AGREEMENT 

Upon Department approval. 



,0106 

(a) Upon Department approval, a written 
agreement will be executed between the grant 
recipient and the Department. 

(b) The agreement defines Department's and 
grant recipient's responsibilities and obligations. 
the project period, project scope and the amount of 



grant assistance. 

(c) The approved a pplication and support 
documentation will become a part of the grant 
agreement. 

(d) The grant agreement may be amended upon 
mutual consent and approval by. the Department 
and the grant recipient. 

Statutory Authority G.S. 113-44.15. 

.0107 MATCHING REQUIREMENTS 

The local governmental unit must match PARTF 
funds with at least an equal amount of local funds 
in the form of cash, check or money order. No 
federal assistance or other state funded assistance 
is eligible as local match sources. 

Statutory Authority G.S. 113-44.15. 

.0108 PROJECT ELIGIBILITY 

PARTF grants are awarded to grantees for 

projects that are for the sole purpose of providing 

local recreation o pportunities to the public. 

Applicants may request funds for the following 

types of projects: 

(1) Fee simple acquisition of real property 

for preservation of natural areas and 

future recreational development. 

Development on PARTF acquired 

property to allow general public access 

and use must occur within five years of 

the date of grant completion. 

Development. Projects for the 

construction, expansion, and 

renovation/ repair of the following: 



m 



(a) Primary facilities including outdoor and 
indoor recreation facilities. Examples 
include camping facilities, picnic 
facilities, sports and plavfields. trails, 
swimming facilities, boating/fishing 
facilities, spectator facilities, 
gymnasiums, etc. 

(b) Su pport facilities and im provements 
including roads, parking areas, 
handicapped accessibility. utilities, 
landscaping, su pport facilities, other 
infrastructure, etc. that would have 
little or no recreational value without 
the primary recreation facilities. 

Statutory Authority G.S. 113-44.15. 

.0109 SITE CONTROL AND DEDICATION 

fa) Land acquired with PARTF assistance shall 
be dedicated in perpetuity as a recreation site for 
the use and benefit of the general public. The 
dedication must be recorded in the public property 
records by the grantee. 

fb) The site of a PARTF development project 
shall be controlled (e.g. fee simple ownership or 
long-term lease) by the grantee by the closing date 
of the a pplication submission period. Any lease 
agreement must extend for a minimum of 25 years. 

(c) Grantees shall assure that PARTF assisted 
development facilities are maintained and managed 
for public recreation use for a minimum period of 
25 years after the completion date set forth in the 
grant agreement. 

(d) Projects sponsored jointly by a school 
district and incorporated city or county will require 
all sponsors to comply with all PARTF rules 
pertaining to operation and maintenance of PARTF 
assisted facilities and land. 

(e) Failure by the grantee(s) to comply with the 
provisions of this Section and the project 
agreement shall result in the Department declaring 
the grantee(s) ineligible for further participation in 
the PARTF until such time as compliance has been 
obtained to the satisfaction of the Department. 

Statutory Authority G.S. 113-44.15. 

.0110 INSPECTIONS 

(a) Regional park and recreation consultants or 
PARTF staff shall perform at least one progress 
inspection and a final close-out inspection of the 
project site to ensure compliance with the grant 
agreement prior to release of the final grant 
payment. 

(b) Grantees will be responsible for conducting 



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PROPOSED RULES 



periodic inspections (one every five years) to 
ensure compliance with the grant agreement and 
15A NCAC 12K .0109 and submitting an 
inspection form with an affidavit verifying hs 
content to the PARTF program office. 

(c) Regional park and recreation consultants will 
conduct random inspections to verify program 
compliance. 

Statutory Authority G.S. 113-44.15. 

.0111 PROGRAM ACKNOWLEDGEMENT 

Grantees will erect and maintain a sign in a 
conspicuous place acknowledging the assistance of 
the PARTF for the useful life of the project. 
Projects on land owned by or adjacent to schools 
must have sign(s) installed informing the public 
that the facilities are open to the general public. 
These signs should also indicate the times when 
the facilities are reserved exclusively for school 
use. 

Statutory Authority G.S. 113-44.15. 

TITLE 16 - DEPARTMENT OF 
PUBLIC EDUCATION 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the State Board of Education 
intends to amend rules cited as 16 NCAC 6C . 0101 
and. 0207. 

1 he proposed effective date of this action is July 
1, 1995. 

1 he public hearing for Rule . 0101 will be con- 
ducted at 9:30 a.m. and the hearing for Rule 
.0207 will be conducted at 10:00 a.m. on Novem- 
ber 22, 1994 at the Education Building, Room 
224, 301 N. Wilmington Street, Raleigh, NC 
27601-2825. 

txeason for Proposed Action: 
16 NCAC 6C .0101 - Amendment will conform 
terminology with that generally used in the educa- 
tional community. 

16 NCAC 6C .0207 - Amendment makes clarifying 
and editorial changes. 

(comment Procedures: Comments may be pre- 
sented orally at the hearing or in writing through 
December 1 , 1994. Comments should be sent to 



Harry E. Wilson, APA Coordinator, Education 
Building, Room 2086, Raleigh, NC. 

CHAPTER 6 - ELEMENTARY 
AND SECONDARY EDUCATION 

SUBCHAPTER 6C - PERSONNEL 

SECTION .0100 - GENERAL PROVISIONS 

.0101 DEFINITIONS 

As used in this Subchapter: 

(1) "Institution of higher education" (THE) 
means a senior college or university. 

(2) "Instructional personnel" means all teach- 
ers as defined by G.S. 115C-325, with 
the exception of supervisors, and 
non-teaching principals, assistant 
principals, social workers, counselors and 
psychologists. The term includes 
principals, assistant principals, or 
counselors who teach any part of the day, 
librarians and instructional aides, except 
that: 

(a) aides are not included for the purpose 
of applying Rule .0403 of this 
Subchapter; and 

(b) aides are not included for the purpose 
of applying Rule .0301 of this 
Subchapter. 

(3) "License" has the same meaning as the 
term "certificate" as used in .16 NCAC 
1A .0001(21. 

(4) {3} "National Teachers' Examination" 
(NTE) means the standard examination 
adopted by the SBE pursuant to G.S. 
115C-284(c), 115C-296 and 
115C-3 15(d). 

(5) {4)" Other personnel" means those 
persons not included within the definition 
of instructional personnel. 

(6) i%)" Part-time employee" means a person 
employed for at least 20 hours per week. 

(7) {6)"Permanent employee" means a person 
who is not a student enrolled in the 
school system who is employed: 

(a) other than on an interim basis, to fill a 
position which is to become permanent 
if current needs and funds continue; or 

(b) for at least six months under one 
contract, to replace one or more 
employees who are on leave without 
pay. 

(8) (^"Professional public school employee" 
means and includes: 



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(a) teachers; 

(b) Administrators (superintendents, 
assistant or associate superintendents, 
principals, assistant principals, and 
supervisors); and 

(c) education specialists (counselors, school 
social service workers, curriculum 
instructional specialists, school 
psychologists, and media personnel). 

(9) ^"Renewal credit" means credit earned 
by a certificated employee for certificate 
renewal purposes. 

(10) {9)"SACS" means the Southern 
Association of Colleges and Schools. 

(11) {40)" Substitute" means a person who 
holds a teacher's certificate, or who is a 
college graduate, or who has been 
determined by a local board to be capable 
of performing the duties of a substitute 
teacher. 

(12) f!4)"Teacher education program" means 
the curriculum, instructional resources 
and faculty that contribute to the quality 
of instruction and the acquisition of 
knowledge, skills and competencies 
required for professional personnel to 
perform effectively in the public schools. 

Authority N. C. Constitution, Article IX, Sec. 5. 

SECTION .0200 - TEACHER 
EDUCATION 

.0207 PROSPECTIVE TEACHER 
SCHOLARSHIP LOANS 

(a) Recipients of prospective teacher scholarship 
loans who attend a college or university will 
receive up to two thousand dollars ($2,000) per 
year to pay for courses, fees and books. 
Recipients of prospective teacher scholarship loans 
who attend a technical/community college will 
receive nine hundred dollars ($900) per year to 
pay for courses, fees and books. 

(b) Loan s Scholarship loans are available only to 
legal residents of North Carolina. To be 
considered a legal resident, a person must have 
lived in the state for at least 12 months before 
applying for the loan. In addition — te — the 
requirement — ef- — &* — 115C 4 71(2) — regarding 
endorsement of the note by a minor's parent, each 
Each recipient must obtain the signature as surety 
of one resident of the state who is at least age 21. 

(c) Persons who are in default on another 
student loan will not be eligible for a scholarship 
loan under this Rule. 



(d) Loan Scholarship loan recipients must enroll 
in and attend a public or private college or 
university in this state with an approved teacher 
education program, or a technical/community 
college in this state with a program of study that 
leads to teacher certification licensure . 

(e) A recipient's scholarship loan may be 
continued during periods of study abroad only if 
the recipient remains enrolled in a North Carolina 
college or university and receives credit toward 
completion of requirements for the work completed 
while abroad. 

(f) {e)Scholarship loans may not be used to 
obtain credits through correspondence courses or 
extension courses even if the recipient uses less 
than the maximum amount as an undergraduate. 

(g) {#)The Department may cancel a loan if the 
recipient: 

(1) willfully reports requested information 
that is erroneous or incomplete; 

(2) fails to complete and return requested 
forms by the required dates; 

(3) fails to pursue a full-time program in 
teacher education or withdraws 
permanently from college; 

(4) is not admitted to the college's teacher 
education program; 

(5) is convicted of a felony or other crime 
involving moral turpitude, possession or 
use of controlled substances, or other 
grounds for which a teaching certificate 
license may be revoked under 16 
NCAC 6C .0312; 

(6) does not maintain a 2-r0 2^5 cumulative 
average for the freshman year and a 2-t5 
3.0 cumulative average for each of the 
following years, based upon a 4.0 
grading scale; or 

(7) fails to keep the Department informed 
of any address change or change in 
status as a prospective teacher. 

(h) (g)Upon cancellation or default, the entire 
principal balance, together with accrued interest, 
becomes immediately due and payable. 

(i) (h)Once a recipient receives a certificate 
based — upon — the — entry level — degree Upon 
graduation , the amount of the loan and accrued 
interest must be repaid by either employment as a 
regular full-time teacher or by making cash 
payments. Recipients who do not begin teaching 
in the school year following their qualifying for 
certification graduation must begin repayment upon 
their failure to begin teaching. The — entire 
principal — and accrued — interest — must be — repaid 
within the same number of year s as the number of 



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PROPOSED RULES 



loans received, beginning September 1 of the year 

following the recipient's qualifying fer 

certification. Repayment shall be made in full or in 
equal monthly installments as determined by the 
Department, contingent upon the number of notes 
received. 

ij) {i)For purposes of credit for teaching, "full 
school year" means a minimum of six calendar 
months. Service as a tutor, a substitute teacher, a 
part-time teacher or a teacher in a non-public 
school does not qualify as service credit for loan 
repayment. 

Statutory Authority G.S. 115C-471. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 

CHAPTER 18 - BOARD OF EXAMINERS 
OF ELECTRICAL CONTRACTORS 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the State Board of Examiners of 
Electrical Contractors intends to amend rules cited 
as 21 NCAC 18B .0105, .0401, .0703, .0801, 
.0901, .1001 and repeal .0705. 

Ihe proposed effective date of this action is 
February 1, 1995. 

Ihe public hearing will be conducted at 8:30 
a.m. on December 8, 1994 at the State Board of 
Examiners of Electrical Contractors, 1200 Front 
Street, Suite 105, Raleigh, NC 27609. 

MXeason for Proposed Action: 
21 NCAC 18B .0105 - To clarify when board 
records are available for public inspection. 
21 NCAC 18B .0401 - To provide for the licensing 
of limited liability companies. 
21 NCAC 18B .0703 - To be consistent with new 
formal resolution agreement. 
21 NCAC 183 .0705 - Formal resolution agree- 
ment terminated. 

21 NCAC 18B .0801 - To be consistent with G.S. 
87-43.3. 

21 NCAC 18B .0901 - To set out procedures for 
applicants convicted of crimes. 
21 NCAC 18B .1001 - To update information 
contained on forms provided by the Board. 

Lsomment Procedures: Persons interested may 



present written or oral statements at the public 
hearing or in writing prior to the hearing by mail 
addressed to: Robert L. Brooks, Jr. , State Board 
of Examiners of Electrical Contractors, P.O. Box 
18727, Raleigh, NC 27619. 

SUBCHAPTER 18B - BOARD'S RULES 

FOR THE IMPLEMENTATION OF 

THE ELECTRICAL CONTRACTING 

LICENSING ACT 

SECTION .0100 - GENERAL 
PROVISIONS 

.0105 BOARD RECORDS 

(a) The Board interprets G.S. Chapter 132 to 
mean that, except for examination questions and 
unused examinations, the records of the Board, 
which are required by the North Carolina General 
Statutes and which arc nece ss ary to bo kept by the 
Board in the discharge of its dutie s , arc public 
records. The Board' s public records arc construed 
to be clas s ified as a privileged record or a 
non privileged record as follow s : 

fi} Privileged Records. — Privileged records 

are those records of the Board for 
which public inspection i s restricted 
s olely to the s pecific person, firm or 
corporation — (party — of record) — about 
which the records are as s embled and 



maintained. 



Privileged records 



specifically include, but may not be 

limited to; 
{A) — Personal — information — about — as 
applicant — fef — licensure — which — fee 
Board — assembles — and — evaluate s — ia 
determining the applicant' s eligibility 
to take a qualifying examination for 

any clas s ification e# — electrical 

contracting license or to obtain or 



maintain — a — license. 



Personal 



informat iea- 



mny bo either vonnod or 
unverified and generally relates to the 

character, educational training, 

employment record, experience, and 
finance s of the applicant. 

(B) — An examinee's actual examination or 
a true copy of the same from th e 
Board' s file s . 

{€) — The actual grade an examinee made 
on hi s qualifying examination. 

fB) — Per s onnel files of Board members and 
members of the Board' s staff. 

{E) — Any other record which i s determined 
by the Board to bo s imilar in natur e 



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to, or within the scope of, the infer 
mation — s tipulated — m — Subdivisions 
(a)(1)(A) through (D) of thi s Rule. 

(3) Non privileged Records. — Nea — privi 

lcgcd records are any and all records of 

the Board other than examination quoo 

tions, unused examination s , or records 

classified as privileged records. 

(b) Privileged records will be made available to 

the part)' of record for inspection in the Board'3 

office during the Board's regular business hours at 

a time mutually convenient to the party of record 



and the Board. — Such records may also bo made 
available to the party of record for in s pection at 



such other time and place as may be specifically 



authorized by the Board. 

{e) — Privileged information will not be made 
available to anyone other than the party of record 



for any purpose except! 

fi) Pursuant to a specific waiver of privi 

lego from the party of record, to the 
extent authorized by s uch waiver; 

(3) Pursuant to a subpoena or court order; 

(3) On a need to know basis to govornmen 

tal agencie s having s tatutory or other 
lawful authority to in s pect, utilize or 
maintain such information in the pcrfor 
mancc of their official duties; and 

f4) Upon the introduction thereof as an 

exhibit — ia — any — court, — administrative 
hearing or other public proceeding. 
{d) — Non privileged record s will be made avail 
able to the general public for inspection at a 
reasonable time in the Board's office during the 
Board' s regular busines s hour s and at s uch other 
place s and times s pecifically authorized by the 
Board. 

The records of the Board shall be maintained at 
the Board office and shall be available for public 
inspection, in accordance with G.S. 132. during 
regular office business hours. 

Statutory Authority G.S. 87-42; 87-47; 132-1. 



SECTION .0400 - LICENSING 
REQUIREMENTS 

.0401 LICENSE APPLICANTS: 

REQUIREMENTS FOR EACH 
CLASSIFICATION 

(a) An applicant for an electrical contracting 
license in each of the license classifications shall: 
(1) submit a completed application to the 
Board on a form provided by the Board 
for the license classification involved; 



(2) submit the annual license fee for the 
license classification involved as pre- 
scribed in Rule .0404 of this Section; 
and 

(3) furnish the name, signature and social 
security number of at least one person 
to serve as the listed qualified individu- 
al for the applicant's license. 

(b) Corporation ef Partnership or Limited 
Liability Company . If the license applicant is a 
corporation ©* partnership? or limited liability 
company, the application shall contain the names 
and titles of the officers., ef names of the partners- 
or names of the members of the limited liability 
company, whichever is applicable. 

(c) Intermediate and Unlimited Classifications. 
License applicants in the intermediate and unlimit- 
ed classifications shall also furnish a bonding 
ability statement or a line of credit letter issued by 
a bank, savings bank, or savings and loan associa- 
tion pursuant to G.S. 87-43. 2(a) (4). 

(d) Special Classifications. A license applicant 
in the SP-EL, SP-PH, SP-WP, SP-ES or SP-SP 
classification must also include on the license 
application information verifying that the applicant 
is conducting a lawful business in the State of 
North Carolina in the license classification in- 
volved. 

Statutory Authority G.S. 87-42; 87-43.2; 87-43.3; 
87-43.4. 

SECTION .0700 - LICENSING 
RECIPROCITY 

.0703 RECIPROCITY: VIRGINIA 

Pursuant to the provisions of Rule .0701 of this 
Section and the formal resolution agreement 
between the Board and the Virginia State Board 
for Contractors, licensees of the Virginia Board, 
who are non-residents of North Carolina, are 
eligible to apply for and obtain a North Carolina 
electrical contracting license license: and North 
Carolina licensees, who are non-residents of 
Virginia, are eligible to apply to the Virginia 
board Board and obtain a Virginia electrical 
contracting license in classifications as prescribed 
in the following table: 



VIRGINIA LICENSEE 



Class B 
Class A 



ELIGIBLE FOR 
NORTH CAROLINA 
LICENSE 

Limited or intermediate 
Limited, intermediate or 



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unlimited 



NORTH CAROLINA 
LICENSEE 



Intermediate 
Unlimited 



ELIGIBLE FOR 
FOR VIRGINIA 
LICENSE 

Class A or Class B 
Class A or Class B 



Statutory Authority G S. 87-42; 87-50. 

.0705 RECIPROCITY: GEORGIA 

Pursuant to the provisions of Rule .0701 of this 
Section — and — the — formal — re s olution — agreement 
between the Board and the Georgia Construction 
Indu s try Licen s ing Board, licensees of the Georgia 
board, who ore non residents of North Carolina, 
arc eligible to apply for and obtain a North Caroli 
na electrical contracting license and North Carolina 
licensees, who are non re s idents of Georgia, arc 
eligible to apply to the Georgia board and obtain 
a Georgia electrical contracting license in olassifi 
cation s as prescribed in the following tabic: 



GEORGIA LICENSEE ELIGIBLE FOR NORTH 

CAROLINA LICENSE 
Unrestricted Unlimited 

NORTH CAROLINA LICENSEE Unlimited 
ELIGIBLE FOR GEORGIA LICENSE 
Unrestricted 

Statutory Authority G.S. 87-42; 87-50. 



(3) plumbing, heating, and air conditioning 
license (SP-PH); 

(4) groundwater pump license (SP-WP); 

(5) electric sign license (SP-ES); and 

(6) swimming pool license (SP-SP). 

(b) Limited Scope. A special restricted con- 
tracting license does not authorize the licensee to 
engage or offer to engage in the business of elec- 
trical contracting in general. It authorizes the 
licensee to engage or offer to engage only in the 
limited phase of electrical contracting described in 
the Rule in this Section that specifies the scope of 
the applicable special restricted license. 

(c) No Project Value Limit. The limitations 
concerning the dollar value of projects that may be 
undertaken by a limited or an intermediate licensee 
do not apply to special restricted licensees. Thus, 
the holder of a special restricted license may 
engage or offer to engage in any project authorized 
by the license regardless of the dollar value of the 
project. 

(d) Effect of Regular License. A licensee in the 
regular license classifications, whether limited, 
intermediate or unlimited, is qualified to engage or 
offer to engage in any activity authorized by a 
special restricted licensei subject to the project 
value limitations contained in G.S. 87-43.3. and 
does not have to obtain a special restricted license. 

Statutory Authority G.S. 87-42; 87-43.3; 87-43.4. 

SECTION .0900 - VIOLATIONS AND 
CONTESTED CASE HEARINGS 



SECTION .0800 - SPECIAL RESTRICTED 
LICENSES 

.0801 GENERAL PROVISIONS 

(a) Types. A special restricted electrical 
contracting license classification is a classification 
established by the Board pursuant to G.S. 87-43.3 
or established directly by G.S. 87-43.4. Its pur- 
pose is to license persons, partnerships, firms, or 
corporations to engage or offer to engage in only 
a limited phase of electrical contracting work. 
Each special restricted license classification is 
separate from all other special restricted and 
regular license classifications. At the direction of 
G.S. 87-43.4, the Board created the special re- 
stricted single family dwelling electrical contract- 
ing license. Pursuant to G.S. 8 7 4 3. 4 87-43.3 . the 
Board has established the following special restrict- 
ed electrical contracting licenses: 

(1) low voltage wiring license (SP-LV); 

(2) elevator license (SP-EL); 



.0901 APPLICANTS CONVICTED OF 
CRIMES 

The Board may deny an examination applicant 
permission to take an examination when it finds 
the applicant i s not eligible, regardles s of whether 
it has previously notified the applicant that ho may 



take the examination. — The Board 



refu s e to 



«ay- 

issue a licen s e to a license applicant when it finds 
the applicant i s not qualified, regardle ss of whether 
the applicant has pas s ed the appropriate exominn 
tion. — An applicant may contest the Board's dcei 
sion by requesting an admini s trative hearing. The 
Board shall consider the examination application of 
a person who has been convicted of a crime 
involving fraud or moral turpitude after at least 
one year has elapsed following the a pplicant's 
completion of the terms and conditions of any 
punishment for the conviction, including incarcera- 
tion, probation and parole, or the Board shall 
consider the application before such completion at 
an administrative hearing requested by the appli- 



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cant or set by the Board, 

Statutory Authority G.S. 87-42; 87-43.3; 87-43.4; 
87-47 (al)(4). 

SECTION .1000 - DESCRIPTION OF 

FORMS, CERTIFICATES AND 

PUBLICATIONS 

.1001 FORMS PROVTOED BY 
THE BOARD 

(a) Examination Applications. An application 
form is provided to a person wishing to apply to 
take a qualifying examination for an electrical 
contracting license. The application form is 
designed for an applicant to furnish the following 
information: 

(1) date; 

(2) name, address and telephone number; 

(3) age; 

(4) social security number; 

(5) whether or not applicant has taken a 
qualifying examination previously; 

(6) classification of license for which appli- 
cant wishes to qualify and amount of 
application-examination fee; 

(7) educational background; 

(8) experience background; 

(9) character references; 

(10) criminal convictions; 

(11) other references or information appli- 
cant wishes the Board to consider; 

(12) authorization for board to research all 
information submitted on or in support 
of applicant; and 

(13) signature of applicant. 

(b) Examination Review Applications. Each 
failing examinee is provided a form for his use in 
applying for a detailed review of his failed exami- 
nation. This form is designed for the applicant to 
furnish the following information: 

(1) date; 

(2) name, address and telephone number; 

(3) social security number; 

(4) date he took his failed examination; 

(5) location in which he took his failed 
examination; 

(6) examination review fee; and 

(7) signature of applicant. 

(c) License Applicants. Each license applicant 
is provided with an application form for his use in 
initially applying for a license. The application 
form is designed for the applicant to furnish the 
following information: 

(1) classification of license for which he is 



applying; 

(2) name in which he wishes the license to 
be issued; 

(3) business mailing and location address; 

(4) business and home telephone numbers; 

(5) whether business is partnership^, et 
corporation or limited liability company 
and, if so, the names of the partners^ ©f 
the names and titles of officers of the 
corporation or names of the members of 
the limited liability company ; 

(6) whether business is to be operated 
part-time or full-time; 

(7) names, signatures and social security 
numbers of the listed qualified individu- 
als to be indicated on the license; 

(8) annual license fee; 

(9) criminal convictions; 

(10) authorization for board to research all 
information submitted on or in support 
of application; 

(11) date; and 

(12) signature and title of applicant. 

(d) License Renewal Applications. Each licens- 
ee is provided with an annual license renewal 
application form prior to the expiration of his 
current annual license. This application form is 
designed for the licensee to furnish the following 
information: 

(1) name in which his license is currently 
issued; 

(2) whether license is to be renewed in 
same name or, if not, new name in 
which he wishes license to be renewed; 

(3) mailing and business location address; 

(4) business and home telephone numbers; 

(5) whether business is to be operated 
part-time or full-time; 

(6) whether business is partnership^, ef 
corporation or limited liability company 
and, if so, the names of the partners^ ©f 
the names and titles of officers of the 
corporation or names of the members of 
the limited liability company ; 

(7) names, signatures and social security 
numbers of the listed qualified individu- 
als to be indicated on new annual li- 
cense; 

(8) annual license fee; 

(9) authorization for board to research all 
information submitted on or in support 
of application; 

(10) date; and 

(11) signature and title of applicant. 

(e) Request for Change of Name or Address in 



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PROPOSED RULES 



Which License Is Issued. A licensee wishing to 
change his license name or address is furnished a 
form for his use in requesting a change of name or 
address. This form is designed for the licensee to 
furnish the following information: 

(1) name and address in which license is 
currently issued; 

(2) name and address in which license is to 
be reissued; 

(3) whether business is to be operated 
part-time or full-time; 

(4) whether business is partnership^ ©r 
corporation or limited liability company 
and, if so, the names of the partners^ er 
the names and titles of officers of the 
corporation or names of the members of 
the limited liability company ; 

(5) certification of listed qualified individu- 
al by name and conditions of employ- 
ment; 

(6) name and title of person filing request 
and date of request; and 

(7) signature of listed qualified individual. 

(f) License Applications: South Carolina Reci- 
procity. These forms are designed for an applicant 
to furnish the same type of information as is 
provided on the forms described in Paragraphs (c) 
and (d) of this Rule, with the following additional 
information: 

(1) name in which applicant's current South 
Carolina license is issued; 

(2) classification of applicant's South Caro- 
lina license; 

(3) number of current South Carolina li- 
cense; 

(4) statement from South Carolina Licens- 
ing Board for Contractors certifying the 
individuals who are qualified under the 
applicant's South Carolina license and 
the extent of each individual's qualifica- 
tions; and 

(5) names, signatures and social security 
numbers of the listed qualified individu- 
als on South Carolina license and to be 
indicated as such on North Carolina 
license. 

(g) License Application: Alabama Reciprocity. 
These forms are designed for the applicant to 
furnish essentially the same type of information as 
is provided on the forms described in Paragraphs 
(c), (d) and (f) of this Rule. 

(h) License Application: Georgia Virginia 
Reciprocity. These forms are designed for the 
applicant to furnish essentially the same type of 
information as is provided on the forms described 



in Paragraphs (c), (d) and (f) of this Rule. 

(i) Bonding Ability Statement. A bonding 
ability statement form is provided to an applicant 
wishing to obtain a license in either the intermedi- 
ate or unlimited classification. This form is to be 
completed by a bonding company duly licensed to 
issue performance bonds in North Carolina. The 
form is designed for the bonding company to state 
its bonding experience with the applicant and 
amount of performance bond the bonding company 
would be willing to issue to the applicant at on the 
date the form is completed and signed. The 
signer's power of attorney must accompany the 
bonding ability statement form. 

(j) Certification of Listed Qualified Individual. 
This form is provided to any licensee or applicant 
for a license whose listed qualified individual is 
someone other than the licensee or applicant for a 
license. This form is designed for the licensee or 
applicant for a license to certify who will be the 
listed qualified individual for the licensee and that 
the listed qualified individual is, or will be, regu- 
larly employed by the licensee and has, or will 
have, the specific duty and authority to supervise 
and direct all electrical installation, maintenance, 
alteration or repair of any electric wiring, devices, 
appliances or equipment done in the name of the 
licensee. 

(k) Affidavit certifying Bona Fide Employee. 
This affidavit form is provided to any licensee 
whose relationship with his employees has been 
challenged and it is alleged that someone other 
than his bona fide employee is engaged in electri- 
cal work under the auspices of his license. The 
form must contain the signature and title of the 
person completing the form and must be notarized. 
The form is designed for the licensee to furnish 
information establishing compliance with the 
requirements of Rule .0306(a)(2) and (3) of this 
Subchapter. 

Statutory Authority G.S. 87-42. 



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****************** 

CHAPTER 19 - BOARD OF 
ELECTROLYSIS EXAMINERS 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Electrolysis Examiners intends to adopt rules cited 
as 21 NCAC 19 .0103, .0203, .0701 - .0704. 

The proposed effective date of this action is 
February 1, 1995. 

The public hearing will be conducted at 10:00 
a.m. on December 3, 1994 at the State Employees ' 
Credit Union Building, Fourth Floor Conference 
Room, 801 Hillsborough Street, Raleigh, North 
Carolina. 

Reason for Proposed Action: It is necessary to 
establish continuing education requirements for 
licensed electrologists , to set standards and proce- 
dures for obtaining credit for continuing education, 
to establish procedures for renewal, reinstatement, 
and reactivation of licenses, and to inform the 
public of the Board's requirements. 

tsomment Procedures: The record of hearing wilt 
be open for receipt of written comments from 
November 1, 1994 through the close of the hearing 
on December 3, 1994. Written comments may be 
submitted at the hearing or delivered to the Board 
at its mailing address (P.O. Box 10834, Raleigh, 
NC 27605-0834). Anyone wishing to speak at the 
hearing should notify Trudy Brown in writing at 
the Board's mailing address no later than 5:00 
p.m. the day before the hearing. All others will be 
able to speak only if time permits. 

SECTION .0100 - GENERAL PROVISIONS 

.0103 DEFINITIONS 

In this Chapter, "continuing education unit" or 
"CEU" means 10 clock hours of participation in an 
organized continuing education experience that is: 

(1) related to the practice of electrolysis; and 

(2) obtained after the original granting of 
licensure. 

Statutory Authority G.S. 88A-6; 88A-12; 88A-13; 
88A-18. 



SECTION .0200 - APPLICATION 
PROCEDURES 

.0203 APPLICATION FOR RENEWAL, 
REINSTATEMENT, OR 
REACTIVATION OF LICENSE 

(a) Unless the applicant's license expired more 
than 90 days prior to the filing of an a pplication 
for renewal, each a pplicant for license renewal 
pursuant to G.S. 88A-12 shall pay the required 
renewal fee, including the late renewal charge if 
applicable, and shall provide proof of compliance 
with 21 NCAC 19 .0701(a). 

(b) An electrologist whose license has been 
expired for more than 90 days but less than five 
years shall app ly for reinstatement by sending the 
Board a written request for reinstatement, paving 
the reinstatement fee, and providing proof of 
competence pursuant to 21 NCAC 19 .0701(c). 

(c) An electrologist who has been on the inac- 
tive list for less than five years who desires to be 
returned to active status shall send the Board a 
written request for return to the active list, pay the 
renewal fee, and provide proof of competence 
pursuant to 21 NCAC 19 .0701(b). 

(d) Proof of compliance with 21 NCAC 19 
.0701 may be provided either by affidavit of the 
applicant listing the programs or courses taken, the 
entity that offered the program or course, the 
CEUs obtained, and the date and location of the 
program or course, or by copies of a certificate of 
completion issued by the entity that offered the 
program or course, identifying the course and 
showing the date, location, and number of hours 
taken by the a pplicant. The Board may request 
confirmation of the number of hours from the 
entity that offered the program or course and will 
not give credit for hours that the entity does not 
confirm as hours actually taken by the applicant. 

(e) A pplicants for renewal of a school certifica- 
tion shall pay the required renewal fee and update 
the information submitted when the school initially 
a pplied. This update shall include any information 
required of new applicants that was not required 
when the school was initially certified. 

(f) All other applicants for license or certifica- 
tion renewal, reinstatement, or reactivation shall 
comply with the requirements of G.S. 88A. 

Statutory Authority G.S. 88A-6; 88A-12; 88A-13; 
88A-18. 

SECTION .0700 - CONTINUING 
EDUCATION 



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.0701 CONTINUING ED REQ/LICENSE 
RENEWAL, REINSTATEMENT/ 
REACTIVATION 

fa) Each electrologist licensed in this State shall 
complete at least one CEU each renewal period as 
a requirement for renewal of the electrologist's 
license. Over any two renewal periods, the Board 
will give credit for no more than one-half CEU in 
the area of business management. 

(b) An electrologist who has been placed on the 
inactive list by the Board for less than five years 
may present evidence of completion of one CEU 
within the 12 months preceding a pplication for 
return to active status in satisfaction of the compe- 
tency requirement of G.S. 88A-14 before the 
Board will return the electrologist to active status. 

(c) An electrologist whose license has been 
expired for 90 days or more but less than five 
years may present evidence of completion of one 
CEU for each renewal period or part of a renewal 
period that has elapsed since the electrologist's 
license was last current in satisfaction of the 
competency requirement of G.S. 88A-12. At least 
one of the CEUs offered in satisfaction of a com- 
petency requirement must be completed within the 
12 months immediately preceding the a pplication 
for reinstatement. 

Statutory Authority G.S. 88A-6; 88A-12; 88A-13; 
88A-18. 

.0702 BOARD APPROVAL OF COURSES 

(a) The Board shall approve a program or 
course if it is: 

(1) In any subject required by 21 NCAC 19 
.0601: 

(2) Offered by one of the following enti- 
ties: 

(A) A college or university authorized to 
grant degrees in this State. 

(B) A state or national professional elec- 
trolysis association, or 

£C] A school certified by the Board. 
The entity offering the program or course shall 
provide the Board with the information listed in 
Paragraph (b) of this Rule and shall certify to the 
Board the names of all electrologists licensed by 
the Board who attended the program or course and 
their actual hours of attendance. 

£b] The Board will not a pprove a program or 
course without the following information: 

(1) Title, location, and date of the course. 

(2) Sponsoring entity. 

(3) Course objective and content. 

(4) Hours of study. 



(5) Name, education, and background of 
each instructor. 

(c) An electrologist seeking credit for a program 
or course offered by an entity not listed in Para- 
graph (a) of this Rule may request that the Board 
a pprove the course by submitting in writing, at 
least two months in advance of the course registra- 
tion date, the information listed in Paragraph (b) of 
this Rule on an a pplication form provided by the 
Board. 

(d) The Board shall approve a program or 
course if requested pursuant to Paragraph (c) of 
this Rule on a finding that it offers an educational 
experience designed to enhance the practice of 
electrologv as required by G.S. 88A-13. In 
determining whether or not to make this finding, 
the Board shall consider the program or course in 
light of the criteria set forth in The Continuing 
Education Unit Criteria and Guidelines. 5th edi- 
tion, as adopted by. the International Association 
for Continuing Education and Training (I AC ED 
and incorporated herein by reference without 
including subsequent amendments or editions. The 
presence of all criteria or the absence of individual 
criteria shall not be conclusive. Copies of The 
Continuing Education Unit Criteria and Guide- 
lines. 5th edition, may be obtained at a charge of 
nine dollars ($9.00) per copy for one to four 
copies fseven dollars ($7.00) for IACET members] 
by writing IACET at 1101 Connecticut Avenue 
NW. Suite 700. Washington. D.C. 20036. The 
Board shall notify the electrologist by mail of the 
Board's findings and decision. A change in 
subject matter, length, or instructor of a course 
requires rea pproval by the Board. The entity 
offering the program or course shall either provide 
to the electrologist or provide directly to the Board 
certification of the electrologist's actual hours of 
attendance after the program or course is complet- 
ed. 



Statutory Authority G.S. 88A-6; 88A-12; 88A-13; 
88A-18. 

.0703 COMPUTATION OF CONTINUING 
EDUCATION UNITS 

(a) To obtain credit as a clock hour of continu- 
ing education, the learning activity scheduled for 
an hour shall occupy at least 50 minutes of the 
hour. 

(b) An electrologist may fulfill the continuing 
education requirements of 21 NCAC 19 .0701 by 
completing more than one course if the total equals 
one or more CEUs. 

(c) One semester credit hour at a university or 



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PROPOSED RULES 



college is equivalent to one CEU. A course may 
be audited or taken for credit. 

(d) An electrologist who teaches in a program or 
course approved by the Board may obtain CEU 
credit at the rate of four clock hours for each clock 
hour of teaching. 

Statutory Authority G.S. 88A-6; 88A-12; 88A-13; 
88A-18. 

.0704 TIME LIMITS ON CREDIT 

An electrologist may carry over up to one CEU 
from one renewal period to the next. An electrol- 
ogist a pplying for reinstatement under 21 NCAC 
19 .0203(b) who is presenting CEUs in satisfaction 
of competency requirements may, however, re- 
ceive credit for that purpose for any CEUs taken 
during the time the applicant's license was expired. 



Statutory Authority G.S. 88A-6; 88A-12; 88A-13; 
88A-18. 

****************** 

CHAPTER 32 - BOARD OF 
MEDICAL EXAMINERS 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Board of Medical Examiners of 
the State of North Carolina intends to amend rules 
cited as 21 NCAC 32B .0305, .0315; 320 .0001, 
.0010- .0012. 

lhe proposed effective date of this action is 
February 1, 1995. 

lhe public hearing will be conducted at 1:00 
p.m. on November 17, 1994 at the Board of 
Medical Examiners, 1203 Front Street, Raleigh, 
NC 27609. 

Jxeasonfor Proposed Action: 

21 NCAC 32B .0305 - To include AOA-approved 

Board Certification as a recognized standard by 

which an osteopathic physician may be licensed by 

endorsement. 

21 NCAC 32B .0315 - To include AOA-approved 

Board Certification as a recognized exclusion to 

the ten year qualification rule requiring passage of 

SPEX. 

21 NCAC 320 .0001, .0010 - .0012 - To require 

Physician Assistants to maintain a list of the back- 



up supervising physicians at each practice site, 
and to relieve the Medical Board staff of the 
burden of tracking each back-up supervising 
physician. 

y^omment Procedures: Persons interested may 
present written or oral statements relevant to the 
proposed actions at a hearing to be held as indi- 
cated above. Written statements not presented at 
the hearing should be directed to: Administrative 
Procedures, NC Medical Board, PO Box 20007, 
Raleigh, NC 27619, no later than December 1, 
1994. 

SUBCHAPTER 32B - LICENSE TO 
PRACTICE MEDICINE 

SECTION .0300 - LICENSE BY 
ENDORSEMENT 



.0305 EXAMINATION BASIS FOR 
ENDORSEMENT 

(a) To be eligible for license by endorsement of 
credentials, graduates of medical schools approved 
by the LCME or AOA must supply certification of 
passing scores on one of the following written 
examinations: 

(1) National Board of Medical Examiners; 

(2) FLEX - under Rule .0314 of this Sec- 
tion; 

(3) Written examination administered by an 
allopathic or composite state medical 
board which issued the original license 
on the basis of written examination 
other than FLEX; 

(4) National Board of Osteopathic Examin- 
ers, all parts taken after January 1, 
1990; or 

(5) USMLE - Step 1, Step 2, Step 3 of 
USMLE or a combination of examina- 
tions as set out in Rule .0215(c) of this 
Subchapter. 

(b) Graduates of medical schools not approved 
by LCME or AOA must supply certification of 
passing scores on one of the following written 
examinations: 

(1) FLEX - under Rule .0314 of this Sec- 
tion; 

(2) Written examination other than FLEX 
from the state board which issued the 
applicant's original license by written 
examination together with American 
Specialty Board certification; or 

(3) USMLE - Step 1, Step 2, Step 3 of 



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PROPOSED RULES 



USMLE or a combination of examina- 
tions as set out in Rule .0215(c) of this 
Subchapter. 

(c) A physician who has a valid and unrestricted 
license to practice medicine in another state, based 
on a written examination testing general medical 
knowledge, and who within the past five years has 
become, and is at the time of application, certified 
or recertified by an American Specialty Board or 
an AOA a pproved Specialty Board , is eligible for 
license by endorsement. 

(d) Applicants for license by endorsement of 
credentials with FLEX scores that do not meet the 
requirements of Rule .0314 of this Section must 
meet the requirements of Paragraph (c) in this 
Rule. 

Statutory Authority G.S. 90-10; 90-13. 

.0315 TEN YEAR QUALIFICATION 

Pursuant to the discretion granted in G.S. 90-13, 
the Board may issue a license to any applicant 
without examination using the following guide- 
lines. 

(1) In addition to all other requirements for 
licensure, an applicant who has not met 
one of the following qualifications within 
the past 10 years of the date of the appli- 
cation to the Board, must take the SPEX, 
or other examination as determined by 
the Board, and attain a score of at least 
75: 

(a) National Board of Medical Examiners 
certification; 

(b) Exam scores as required under Rule 
.0314 of this Section; 

(c) SPEX score of at least 75; 

(d) certification or re-certification from a 
specialty board recognized by the 
American Board of Medical Specialties 
or the American Osteopathic 
Association : 

(e) completion of formal postgraduate 
medical education as required under 
Rule .0313 of this Section; or 

(f) examination combinations as set out in 
Rule .0215(c) of this Subchapter. 

(2) The SPEX requirement may be waived 
by the Board upon receipt of a current 
AMA Physician's Recognition Award. 

Statutory Authority G.S. 90-11; 90-13. 

SUBCHAPTER 320 - PHYSICIAN 
ASSISTANT REGULATIONS 



.0001 DEFINITIONS 

The following definitions apply to this 
Subchapter: 

(1) "Board" means the Board of Medical 
Examiners of the State of North 
Carolina. 

(2) "Physician Assistant" means a person 
approved by and registered with the 
Board to perform medical acts, tasks, or 
functions under the supervision of a 
physician licensed by the Board and who 
performs tasks traditionally performed by 
the physician and who has graduated 
from a physician assistant or surgeon 
assistant program approved by the 
American Medical Association Council 
on Medical Education. 

(3) "Physician Assistant License" means the 
document issued by the Board showing 
approval for the physician assistant to 
perform medical acts, tasks, or functions 
under North Carolina law. 

(4) "Registering" means paying an annual fee 
and updating practice information 
requested by the Board as outlined in 
Rule .0005 of this Subchapter. 

(5) "Supervising Physician" means a 
physician licensed to practice medicine 
by the Board and authorized not 
prohibited by the Board to supervise from 
supervising physician assistants. 

(a) The "Primary Supervising Physician" is 
the physician who, by signing the 
application to the Board, accepts full 
responsibility for the physician 
assistant's medical activities and 
professional conduct at all times 
whether the physician personally is 
providing supervision or if supervision 
is being provided by a Back-up 
Supervising Physician. The Primary 
Supervising Physician shall assume total 
responsibility to assure the Board that 
the physician assistant is sufficiently 
qualified by education and training to 
perform all medical acts required of the 
physician assistant and shall assume 
total responsibility for the physician 
assistant's performance in the particular 
field or fields in which the physician 
assistant is expected to perform medical 
acts. No more than two physician 
assistants may be currently registered to 
a primary supervising physician. 



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(b) The "Back-up Supervising Physician" 

means the physician who, by signing 

the application to the Board statement 

required in Rule .0010 of this 

Subchapter , accepts the responsibility to 

supervise the physician assistant's 

activities in the absence of the Primary 

Supervising Physician eely — in — the 

practice s ites li s ted in the application 

approved by the Board . The Back-up 

Supervising Physician is responsible for 

the activities of the physician assistant 

only when he is providing supervision. 

(6) "Supervising" means overseeing the 

activities of, and accepting the 

responsibility for, the medical services 

rendered by a physician assistant in a 

manner approved by the Board. 

Statutory Authority G.S. 90-18(13); 90-18.1. 

.0010 SUPERVISION OF PHYSICIAN 
ASSISTANTS 

Supervision shall be continuous but shall not be 
construed as necessarily requiring the physical 
presence of the supervising physician at the time 
and place that the services are rendered. 

It is the obligation of each team of physician(s) 
and physician assistant(s) to ensure that the 
physician assistant's scope of practice is identified; 
that delegation of medical tasks is appropriate to 
the physician assistant's level of competence; that 
the relationship of, and access to, the each 
supervising physician is defined; and that a process 
for evaluation of the physician assistant's 
performance is established. A statement clearly 
describing these supervisory arrangements in all 
settings must be signed by beth — the each 
supervising physician and the physician assistant 
and shall be kept on file at all practice sites.. This 
statement shall be and available upon request by 
the Board or its representatives. 

The time interval between the physician 
assistant's contact with the patient and chart review 
and countersigning by the supervising physician 
may be a maximum of seven days for outpatient 
(clinic/office) charts. Entries by a physician 
assistant into patient charts of inpatients (hospital, 
long term care institutions) must comply with the 
rules and regulations of the institution, but at a 
minimum, the initial workup and treatment plan, 
and the discharge summary, must be countersigned 
by the supervising physician, within seven days of 
the time of generation of these notes; and, in the 
acute inpatient setting, the initial work-up, orders 



and treatment plan must be signed and dated 
within two working days. 

Statutory Authority G.S. 90-18(13); 90-18.1. 

.0011 SUPERVISING PHYSICIANS 

(a) A physician wishing to serve as a primary 
supervising physician supervise — a — physician 
assi s tant must: 

(1) be licensed to practice medicine by the 
Board and not prohibited by the Board 
from supervising physician assistant : 

(2) notify the Board of the physician's 
intent to serve as a primary supervising 
physician for s upervi s e a physician 
assistant; and, 

(3) submit a statement to the Board that the 
physician will exercise supervision over 
the physician assistant in accordance 
with any rules adopted by the Board 
and that the physician will retain pro- 
fessional and legal responsibility for the 
care rendered by the physician assis- 
tant. 

(b) A physician wishing to serve as a back-up 
supervising physician must be licensed to practice 
medicine by the Board and not prohibited by the 
Board from supervising physician assistants. 

(c) It is the responsibility of the supervising 
physician physicians to ensure that the physician 
assistant has adequate back-up for any procedure 
performed by the physician assistant, in any 
practice location (office, home, hospital, etc.). 

Statutory Authority G.S. 90-18(13); 90-18. 1. 

.0012 NOTIFICATION OF INTENT 
TO PRACTICE 

(a) Prior to the performance of any medical 
acts, tasks, or functions, a physician assistant 
approved by the Board shall submit notification of 
such intent on forms provided by the Board. The 
physician assistant applicant may be provisionally 
approved by the Board's administrative staff to 
begin performing medical acts, tasks, and func- 
tions upon receipt of the application form in the 
Board's office subject to final approval by the 
Board. Such notification shall include: 

(1) the name, practice address, and tele- 
phone number of the physician assis- 
tant; and 

(2) the name, practice address, and tele- 
phone number of the primary supervis- 
ing physician(s) . 

(b) The physician assistant shall notify the Board 



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1208 



PROPOSED RULES 



of any changes or additions in a previously ap- 
proved practice setting or in s upervi s ing physicians 
within 15 days of the occurrence. 

(c) Intent to practice forms must be submitted 
for each additional job under a new primary 
supervising physician. 

Statutory Authority G.S. 90-18(13); 90-18.1. 
****************** 

CHAPTER 36 - BOARD OF NURSING 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Nursing intends to amend rule cited as 21 NCAC 
36.0217. 

1 he proposed effective date of this action is 
February 1, 1995. 

1 he public hearing will be conducted at 1:00 
p.m. on December 15, 1994 at the North Carolina 
Board of Nursing Office, 3724 National Drive, 
Suite 201, Raleigh, North Carolina. 

MXeason for Proposed Action: To establish proce- 
dures to implement G.S. 14-208.5; 15A-1331A and 
90-401. 

Lsomment Procedures: Any person wishing to 
present oral testimony relevant to proposed rule 
may registered at the door before the hearing 
begins and present hearing officer with a written 
copy of testimony. Written comments concerning 
this amendment must be submitted by December 
15, 1994: North Carolina Board of Nursing, P.O. 
Box 2129, Raleigh, NC 27602-2129, ATTN: Jean 
H. Stanley, APA Coordinator. 

SECTION .0200 - LICENSURE 

.0217 REVOCATION, SUSPENSION, 
OR DENIAL OF LICENSE 

(a) The definitions contained in G.S. 90-171.20 
and G.S. 150B-2 (01), (2), (2b), (3), (4), (5), (8), 
(8a), (8b), (9) are adopted by reference within this 
Rule according to G.S. 150B- 14(c). In addition, 
the following definitions apply: 

(1) "Administrative Law Counsel" means 
an attorney whom the Board of Nursing 
has retained to serve as procedural 



officer for contested cases. 
(2) "Prosecuting Attorney" means the 
attorney retained by the Board of Nurs- 
ing to prepare and prosecute contested 
cases. 

(b) A nursing license which has been forfeited 
under G.S. 15A-1331A may not be reinstated until 
the licensee has successfully complied with the 
court's requirements, has petitioned the Board for 
reinstatement, has a ppeared before the Licensure 
Committee, and has had reinstatement approved. 
The license may initially be reinstated with restric- 
tions. 

(c) {b) Behaviors and activities which may result 
in disciplinary action by the Board include, but are 
not limited to, the following: 



(1) 
(2) 
(3) 



(4) 
(5) 



(6) 



(7) 



(8) 



(9) 



(10) 



(11) 



(12) 



drug or alcohol abuse; 
violence-related crime; 
illegally obtaining, possessing or dis- 
tributing drugs or alcohol for personal 
or other use, or other violations of G.S. 
90-86 to 90-113.8; 

evidence of any crime which under- 
mines the public trust; 
failure to make available to another 
health care professional any client 
information crucial to the safety of the 
client's health care; 

delegating responsibilities to a person 
when the licensee delegating knows or 
has reason to know that the competency 
of that person is impaired by physical 
or psychological ailments, or by alcohol 
or other pharmacological agents, pre- 
scribed or not; 

practicing or offering to practice be- 
yond the scope permitted by law; 
accepting and performing professional 
responsibilities which the licensee 
knows or has reason to know that he or 
she is not competent to perform; 
performing, without adequate supervi- 
sion, professional services which the 
licensee is authorized to perform only 
under the supervision of a licensed 
professional, except in an emergency 
situation where a person's life or health 
is in danger; 

abandoning or neglecting a client who 
is in need of nursing care, without 
making reasonable arrangements for the 
continuation of such care; 
harassing, abusing, or intimidating a 
client either physically or verbally; 
failure to maintain an accurate record 



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9:15 



PROPOSED RULES 



for each client which records all perti- 
nent health care information as defined 
in Rule .0224(f)(2) or .0225(f)(2); 

(13) failure to exercise supervision over 
persons who are authorized to practice 
only under the supervision of the li- 
censed professional; 

(14) exercising undue influence on the cli- 
ent, including the promotion of the sale 
of services, appliances, or drugs for the 
financial gain of the practitioner or of a 
third party; 

(15) directly or indirectly offering, giving, 
soliciting, or receiving or agreeing to 
receive, any fee or other consideration 
to or from a third party for the referral 
of a clienti or other violations of G.S. 
90-401 : 

(16) failure to file a report, or filing a false 
report, required by law or by the 
Board, or impeding or obstructing such 
filing or inducing another person to do 
so; 

(17) revealing identifiable data, or informa- 
tion obtained in a professional capacity, 
without prior consent of the client, 
except as authorized or required by 
law; 

(18) guaranteeing that a cure will result 
from the performance of professional 
services; 

(19) altering a license by changing the expi- 
ration date, certification number, or any 
other information appearing on the 
license; 

(20) using a license which has been altered; 

(21) permitting or allowing another person 
to use his or her license for the purpose 
of nursing; 

(22) delegating professional responsibilities 
to a person when the licensee delegat- 
ing such responsibilities knows or has 
reason to know that such a person is 
not qualified by training, by experience, 
or by licensure; 

(23) violating any term of probation, condi- 
tion, or limitation imposed on the li- 
censee by the Board; 

(24) accepting responsibility for client care 
while impaired by alcohol or other 
pharmacological agents; ef 

(25) falsifying a client's record or the con- 
trolled substance records of the agency-: 
lor 

(26) kissing, fondling, inappropriately touch- 



ing or engaging in any other activities 
of a sexual nature with a client while 
responsible for the care of that individ- 
ual. 

(d) fe)When a person licensed to practice nurs- 
ing as a licensed practical nurse or as a registered 
nurse is also licensed in another jurisdiction and 
that other jurisdiction takes disciplinary action 
against the licensee, the North Carolina Board of 
Nursing may summarily impose the same or lesser 
disciplinary action upon receipt of the other 
jurisdiction's action. The licensee may request a 
hearing. At the hearing the issues will be limited 
to: 

(1) whether the person against whom action 
was taken by the other jurisdiction and 
the North Carolina licensee are the 
same person; 

(2) whether the conduct found by the other 
jurisdiction also violates the North 
Carolina Nursing Practice Act; and 

(3) whether the sanction imposed by the 
other jurisdiction is lawful under North 
Carolina law. 

(e) {d)Before the North Carolina Board of 
Nursing makes a final decision in any contested 
case, the person, applicant or licensee affected by 
such decision will be afforded an administrative 
hearing pursuant to the provisions of Article 3A, 
Chapter 150B of the North Carolina General 
Statutes. 

(1) The Paragraphs contained in this Rule 
shall apply to conduct of all contested 
cases heard before or for the North 
Carolina Board of Nursing. 

(2) The following general statutes, rules, 
and procedures apply and are adopted 
by reference within this Rule according 
to G.S. 1 SOB- 14(c), unless another 
specific statute or rule of the North 
Carolina Board of Nursing provides 
otherwise: Rules of Civil Procedure as 
contained in G.S. 1A-1 and Rules of 
Evidence pursuant to G.S. Chapter 8C; 
G.S. 90-86 through 90-113.8; 21 
NCAC 36 .0224 - .0225; Article 3A, 
Chapter 150B; and Rule 6 of the 
General Rules of Practice for Superior 
and District Court. 

(3) Every document filed with the Board of 
Nursing shall be signed by the person, 
applicant, licensee, or his attorney who 
prepares the document and shall contain 
his name, title/position, address, and 
telephone number. If the individual 



9:15 



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1210 



PROPOSED RULES 



involved is a licensed nurse the nursing 

license certificate number shall appear 

on all correspondence with the Board of 

Nursing. 

£Q (e)In accordance with G.S. 150B-3(c) a 

license may be summarily suspended if the public 

health, safety, or welfare requires emergency 

action. This determination is delegated to the 

Chairman or Executive Director of the Board 

pursuant to G.S. 90-171. 23(b)(3). Such a finding 

shall be incorporated with the order of the Board 

of Nursing and the order shall be effective on the 

date specified in the order or on service of the 

certified copy of the order at the last known 

address of the licensee, whichever is later, and 

continues to be effective during the proceedings. 

Failure to receive the order because of refusal of 

service or unknown address does not invalidate the 

order. Proceedings shall be commenced in a 

timely manner. 

(g) -{f)The Board, through its staff, shall issue a 
Letter of Charges only upon completion of an 
investigation, by the Discipline Consultant or other 
authorized Board staff, of a written or verbal 
complaint and review with legal counsel or 
prosecuting attorney or Executive Director. 

(1) Subsequent to an investigation and 
validation of a complaint, a Letter of 
Charges will be sent on behalf of the 
Board of Nursing to the licensee who is 
the subject of the complaint. 

(A) The Letter of Charges shall be served 
in accordance with G.S. 1A-1, Rule 
4, Rules of Civil Procedure. 

(B) The Letter of Charges serves as the 
Board's formal notification to the 
licensee that an allegation of possible 
violation(s) of the Nursing Practice 
Act has been initiated. 

(C) The Letter of Charges does not in and 
of itself constitute a contested case. 

(2) The Letter of Charges shall include the 
following: 

(A) a short and plain statement of the 
factual allegations; 

(B) a citation of the relevant sections of 
the statutes and/or rules involved; 

(C) notification that a settlement 
conference will be scheduled upon 
request; 

(D) explanation of the procedure used to 
govern the settlement conference; 

(E) notification that if a settlement 
conference is not requested, or if 
held, does not result in resolution of 



the case, an administrative hearing 

will be scheduled; and 

(F) if applicable, and in accordance with 

Board-adopted policy, an offer of 

voluntary surrender or reprimand also 

may be included in specified types of 

alleged violations of the Nursing 

Practice Act. 

(3) A case becomes a contested case after 

the licensee, person, or applicant 

disputes the allegations contained in the 

Letter of Charges, requests an 

administrative hearing, or refuses to 

accept a settlement offer extended by 

the Board of Nursing. 

(h) fg)No Board member shall discuss with any 

party the merits of any case pending before the 

Board of Nursing. Any Board member who has 

direct knowledge about a case prior to the 

commencement of the proceeding shall disqualify 

himself from any participation with the majority of 

the Board of Nursing hearing the case. 

£i] {h)A settlement conference, if requested by 
the licensee, is held for the purpose of attempting 
to resolve a dispute through informal procedures 
prior to the commencement of formal 
administrative proceedings. 

(1) The conference shall be held in the 
offices of the Board of Nursing, unless 
another site is designated by mutual 
agreement of all involved parties. 

(2) All parties shall attend or be 
represented at the settlement 
conference. The parties will be 
prepared to discuss the alleged 
violations and the incidents on which 
these are based. 

(3) Prior to the commencement of the 
settlement conference, a form shall be 
signed by the licensee which invalidates 
all previous offers made to the licensee 
by the Board. 

(4) At the conclusion of the day during 
which the settlement conference is held, 
a form must be signed by all parties 
which indicates whether the settlement 
offer is accepted or rejected. 
Subsequent to this decision: 

(A) if a settlement is reached, the Board 
of Nursing will forward a written 
settlement agreement containing all 
conditions of the settlement to the 
other party (ies); or 

(B) if a settlement cannot be reached, the 
case will proceed to a formal 



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PROPOSED RULES 



administrative hearing. 

(j) {^Disposition may be made of any contested 
case or an issue in a contested case by stipulation, 
agreement, or consent order at any time prior to or 
during the hearing of a contested case. 

(lc) <j)The Board of Nursing shall give the 
parties in a contested case a Notice of Hearing not 
less than 15 calendar days before the hearing. The 
Notice shall be given in accordance with G.S. 
1A-1, Rule 4, Rules of Civil Procedure. The 
notice shall include: 

(1) Acknowledgement of service, or 
attempted service, of the Letter of 
Charges in compliance with Paragraph 
(f) of this Rule; 

(2) Date, time, and place of the hearing; 

(3) Notification of the right of a party to 
represent himself or to be represented 
by an attorney; 

(4) A statement that, pursuant to Paragraph 
(m) of this Rule, subpoenas may be 
requested by the licensee to compel the 
attendance of witnesses or the 
production of documents; 

(5) A statement advising the licensee that a 
notice of representation, containing the 
name of licensee's counsel, if any, 
should be filed with the Board of 
Nursing not less than 10 calendar days 
prior to the scheduled date of the 
hearing; 

(6) A statement advising the licensee that a 
list of all witnesses for the licensee 
should be filed with the Board of 
Nursing not less than 10 calendar days 
prior to the scheduled date of the 
hearing; and 

(7) A statement advising the licensee that 
failure to appear at the hearing may 
result in the allegations of the Letter of 
Charges being taken as true and that the 
Board may proceed on that assumption. 

(JQ {k-)Prehearing conferences may be held to 
simplify the issues to be determined, to obtain 
stipulations in regards to testimony or exhibits, to 
obtain stipulations of agreement on nondisputed 
facts or the application of particular laws, to 
consider the proposed witnesses for each party, to 
identify and exchange documentary evidence 
intended to be introduced at the hearing, and to 
consider such other matters that may be necessary 
or advisable for the efficient and expeditious 
conduct of the hearing. 

(1) The prehearing conference will be 
conducted in the offices of the Board of 



Nursing, unless another site is 
designated by mutual agreement of all 
parties. 

(2) The prehearing conference shall be an 
informal proceeding and shall be 
conducted by a Board-designated 
administrative law counsel. 

(3) All agreements, stipulations, 
amendments, or other matters resulting 
from the prehearing conference shall be 
in writing, signed by all parties, and 
introduced into the record at the 
beginning of the formal administrative 
hearing. 

(m) {l)Pre-hearing conferences or administrative 
hearings conducted before a majority of Board 
members shall be held in Wake County or, by 
mutual consent in another location when a majority 
of the Board has convened in that location for the 
purpose of conducting business. For those 
proceedings conducted by an Administrative Law 
Judge the venue will be determined in accordance 
with G. S. 150B-38(e). All hearings conducted by 
the Board of Nursing shall be open to the public. 

(n) (ffl)The Board of Nursing, through its 
Executive Director, may issue subpoenas for the 
Board or a licensee, in preparation for, or in the 
conduct of, a contested case. 

(1) Subpoenas may be issued for the 
appearance of witnesses or the 
production of documents or 
information, either at the hearing or for 
the purposes of discovery. 

(2) Requests by a licensee for subpoenas 
shall be made in writing to the 
Executive Director and shall include the 
following: 

(A) the full name and home or business 
address of all persons to be 
subpoenaed; and 

(B) the identification, with specificity, of 
any documents or information being 
sought. 

(3) Subpoenas shall include the date, time, 
and place of the hearing and the name 
and address of the party requesting the 
subpoena. In the case of subpoenas for 
the purpose of discovery, the subpoena 
shall include the date, time, and place 
for responding to the subpoena. 

(4) Subpoenas shall be served as provided 
by the Rules of Civil Procedure, G.S. 
1A-1. The cost of service, fees, and 
expenses of any witnesses or documents 
subpoenaed shall be paid by the party 



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1212 



PROPOSED RULES 






requesting the witnesses, 
fo) {fi)All motions related to a contested case, 
except motions for continuance and those made 
during the hearing, shall be in writing and 
submitted to the Board of Nursing at least 10 
calendar days before the hearing. Prehearing 
motions will be heard at a prehearing conference 
or at the contested case hearing prior to the 
commencement of testimony. The designated 
administrative law counsel will hear the motions 
and the response from the non-moving party 
pursuant to Rule 6 of the General Rules of Practice 
for the Superior and District Courts and rule on 
such motions. If the pre-hearing motions are 
heard by an Administrative Law Judge from Office 
of Administrative Hearings the provisions of G.S. 
150B-40(e) shall govern the proceedings. 

(p) {©)Motions for a continuance of a hearing 
may be granted upon a showing of good cause. 
Motions for a continuance must be in writing and 
received in the office of the Board of Nursing no 
less than seven calendar days before the hearing 
date. In determining whether good cause exists, 
consideration will be given to the ability of the 
party requesting a continuance to proceed 
effectively without a continuance. A motion for a 
continuance filed less than seven calendar days 
from the date of the hearing shall be denied unless 
the reason for the motion could not have been 
ascertained earlier. Motions for continuance filed 
prior to the date of the hearing shall be ruled on 
by Disciplinary Consultant or Executive Director 
of the Board. All other motions for continuance 
will be ruled on by the majority of the Board 
members or Administrative Law Judge sitting at 
hearing. 

(q) {j»)All hearings by the Board of Nursing will 
be conducted by a majority of members of the 
Board of Nursing, except as provided in 
Subparagraph (1) of this Paragraph. The Board of 
Nursing shall designate one of its members to 
preside at the hearing. The Board of Nursing shall 
designate an administrative law counsel as 
procedural officer to conduct the proceedings of 
the hearing. The seated members of the Board of 
Nursing shall hear all evidence, make findings of 
fact and conclusions of law, and issue an order 
reflecting a majority decision of the Board. 

(1) When a majority of the members of the 
Board of Nursing is unable or elects not 
to hear a contested case, the Board of 
Nursing shall request the designation of 
an administrative law judge from the 
Office of Administrative Hearings to 
preside at the hearing. The provisions 



of Article 3 A, Chapter 150B and 21 
NCAC 36 .0217 shall govern a 
contested case in which an 
administrative law judge is designated 
as the Hearing Officer. 

(2) In the event that any party or attorney 
or other representative of a party 
engages in conduct which obstructs the 
proceedings or would constitute 
contempt if done in the General Court 
of Justice, the Board may apply to the 
applicable superior court for an order to 
show cause why the person(s) should 
not be held in contempt of the Board 
and its processes. 

(3) During a hearing, if it appears in the 
interest of justice that further testimony 
should be received and sufficient time 
does not remain to conclude the testi- 
mony, the Board of Nursing may con- 
tinue the hearing to a future date to 
allow for the additional testimony to be 
taken by deposition or to be presented 
orally. In such situations and to such 
extent as possible, the seated members 
of the Board of Nursing and the desig- 
nated administrative law counsel shall 
receive the additional testimony. In the 
event that new members of the Board 
or a different administrative law coun- 
sel must participate, a copy of the 
transcript of the hearing will be provid- 
ed to them prior to the receipt of the 
additional testimony. 

(r) {q)All parties have the right to present 
evidence, rebuttal testimony, and argument with 
respect to the issues of law, and to cross-examine 
witnesses. The North Carolina Rules of Evidence 
in G.S. Chapter 8C shall apply to contested case 
proceedings, except as provided otherwise in this 
Rule and G.S. 150B-41. 

(1) Sworn affidavits may be introduced by 
mutual agreement from all parties. 

(2) All oral testimony shall be under oath 
or affirmation and shall be recorded. 
Unless otherwise stipulated by all par- 
ties, witnesses are excluded from the 
hearing room until such time that they 
have completed their testimony and 
have been released. 

(s) {f)Any form or Board-approved policy or 
procedure referenced in this Rule, or any rules 
applicable to a case, are available upon request 
from the Board of Nursing and will be supplied at 
a reasonable cost. 



1213 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 



PROPOSED RULES 



Statutory Authority G.S. 14-208.5; 15A-1331A; 
90-1 71. 23(b)(3)(7);90-l 71. 37; 90-1 71. 47; 90-401; 
150B-3(c); 150B-11; 150B-14; 150B-38 through 
150B-42. 

TITLE 25 - OFFICE OF 
STATE PERSONNEL 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the State Personnel Commission 
intends to amend rules cited as 25 NCAC IE 
.0901, .0903 - .0905, .0908 and repeal .0906. 

lhe proposed effective date of this action is 
February 1, 1995. 

lhe public hearing will be conducted at 9:00 
a.m. on December 8, 1994 at the State Personnel 
Development Center, 101 Vkst Peace Street, 
Raleigh, North Carolina. 

Jxeasonfor Proposed Action: 
25 NCAC IE .0901, .0903 - .0905, .0908 - The 
1991 General Assembly approved an amendment to 
the State Personnel Act which authorized the SPC 
to provide 12 holidays in the years when Christmas 
day falls on Tuesday, Wednesday or Thursday. 
The Commission approved the additional holiday 
for 1991 but took no action on changes to the 
Holiday rules. It is proposed that these rules be 
amended to outline the number of holidays for a 
ten-year period (1995 - 2004), to provide the 
additional day when Christmas Day falls on Tues- 
day, Wednesday or Thursday and to offer clarifica- 
tion to State agencies and universities. 
25 NCAC IE .0906 - This rule is proposed to be 
repealed because through the proposed amendment 
of Rule 25 NCAC IE .0905 Alternative Holiday 
Schedules, this Rule has been added to 25 NCAC 
IE .0905 for better clarification. 

K^omment Procedures: Interested persons may 
present statements either orally or in writing at the 
public hearing or in writing prior to the hearing by 
mail addressed to: Patsy Smith Morgan, Office of 
State Personnel, 116 West Jones Street, Raleigh, 
North Carolina 27603. 

CHAPTER 1 - OFFICE OF STATE 
PERSONNEL 

SUBCHAPTER IE - EMPLOYEE BENEFITS 



SECTION .0900 - HOLIDAYS 

.0901 APPROVED HOLIDAYS 

The following days are adopted by the State 
Personnel Commission and approved by the Gov- 
ernor as holidays: 

Holiday Number of Days 

New Year's Day 1 

Martin Luther King, Jr.'s Birthday I 

Good Friday 1 

Memorial Day 1 

Independence Day 1 

Labor Day 1 

Veteran's Day 1 

Thanksgiving Day and the day after 2 
Chri s tmas (2 day s ) 

Christmas. 1995 2 

Christmas. 1996 3 

3 
2 
2 
2 
3 
3 
3 
2 



Christmas. 1997 
Christmas. 1998 
Christmas. 1999 
Christmas. 2000 
Christmas. 2001 
Christmas. 2002 
Christmas. 2003 
Christmas. 2004 



Statutory Authority G.S. 126-4. 

.0903 SCHEDULING HOLIDAYS 

The schedule is issued on a calendar year basis, 
and each year a schedule of the holidays for that 
year will be issued to agency heads by the Office 
of State Personnel . 

Statutory Authority G.S. 126-4. 

.0904 TIME ALLOWED OFF 

Agency heads shall post or issue written notice of 
the holiday schedule to all employee employees . 
Employees are granted eight hours away from 
work on each of these days except where opera- 
tional needs require work on a designated holiday. 

Statutory Authority G.S. 126-4. 

.0905 ALTERNATIVE HOLIDAY 
SCHEDULES 

The holiday schedule listed in 25 NCAC IE 
.0901 shall be used by all state agencies operating 
under the policies, rules, and regulations of the 
Office of State Personnel unless the following 
applies: 

(1) Institutions of higher education and agen- 



9:15 



NORTH CAROLINA REGISTER 



November 1, 1994 



1214 



PROPOSED RULES 



cies requiring a seven-day. 24-hour oper- 
ation may adopt varying alternative holi- 
day schedules in keeping with operational 
needs, provided the employees are given 
the same number of holidays as approved 
by the State Personnel Commission. 
Such special holiday schedules must be 
filed with the Office of State Personnel. 

(2) When the specific date of the legal holi- 
day observance falls on Saturday or 
Sunday, agencies with a seven-day a 
week operation shall adopt an additional 
holiday schedule for employees regularly 
scheduled to work on the specific date of 
the legal holiday observance rather than 
the State government public holiday. 

(3) Both the State government public holi- 
day(s) and the day (si designated for 
observance, pursuant to Item (2) of this 
Rule, shall be specified as premium pay 
holidays. 

Statutory Authority G.S. 126-4. 

.0906 SHUTS 

Some ogcncics may need to adopt an additional 
holiday s chedule applicable to their employees 
working — ee — assigned — shifts — m — maintaining — a 
2 4 hour operation; this schedule would designate 
as — holidays — the — specific — dates — e# — the — legal 
ob s ervances rather than substitute weekdays when 
the observance occur s on Saturday or Sunday. 
This would be in keeping with the purpose of the 
holiday premium pay period. 

Statutory Authority G.S. 126-4. 

.0908 ELIGIBILITY 

Permanent full-time and part-time, including 
probationary, trainee and time-limited, are eligible 
for the paid holidays. Permanent part-time em- 
ployees receive holidays on a pro rata basis. 
Temporary employees are not eligible for paid 
holidays. 

Statutory Authority G.S. 126-4. 



1215 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 



RRC OBJECTIONS 



The Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
150B-21.9(a). State agencies are required to respond to RRC as provided in G.S. 150B-21. 12(a). 



AGRICULTURE 

Plant Industry 

2 NCAC 48E .0302 - General Permits 

Rule Returned to Agency for Failure to Comply with G.S. 150B-21.9(a) & 150B-2 1.2(f) 

COMMERCE 

Alcoholic Beverage Control Commission 

4 NCAC 2T.0103 - Beer Franchise Law; "Brand" Defined 
Energy 



09/15/94 



4 NCAC 12C .0007- Institutional Conservation Program 
Rule Returned to Agency 
Agency Filed Rule for Codification Over RRC Objection 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Health: Epidemiology 

15A NCAC 19A .0101 - Reportable Diseases and Conditions 

Agency Revised Rule 
15A NCAC 19A .0102 - Method of Reporting 

Agency Revised Rule 
ISA NCAC 19C .0602 - Accreditation 

Agency Revised Rule 

Mining: Mineral Resources 

ISA NCAC SB .0013 - Response Deadline to Department's Request(s) 

Wildlife Resources and Water Safety 

ISA NCAC 101 .0001 - Definitions and Procedures 
Rule Returned to Agency 
Agency Filed Rule for Codification Over RRC Objection 

HUMAN RESOURCES 

Vocational Rehabilitation Services 

10 NCAC 20C .0203 - Determination of Order of Selection Priority Category 

Agency Revised Rule 
10 NCAC 20C .0316 - Other Goods and Services 



RRC Objection 09/15/94 



RRC Objection 06/16/94 

07/14/94 

Eff. 08/16/94 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



09/15/94 
09/15/94 
09/15/94 
09/15/94 
09/15/94 
09/15/94 



RRC Objection 09/15/94 



RRC Objection 08/18/94 

Obj. Cont'd 09/15/94 

Eff. 10/01/94 



RRC Objection 09/15/94 
Obj. Removed 09/15/94 
RRC Objection 09/15/94 



9:15 



NORTH CAROLINA REGISTER 



November 1, 1994 



1216 



RRC OBJECTIONS 



Agency Revised Rule 

JUSTICE 

Criminal Justice Education and Training Standards 

12 NCAC 9B .0208 - Basic Training - Probation/Parole Officers 

LICENSING BOARDS AND COMMISSIONS 

Physical Therapy Examiners 

21 NCAC 48F . 0002 - Fees 
Agency Revised Rule 

Therapeutic Recreation Certification 

21 NCAC 65 .0004 - Academic - TRS Examination 
Agency Revised Rule 



Obj. Removed 09/15/94 



RRC Objection 07/14/94 



RRC Objection 09/15/94 
Obj. Removed 09/15/94 



RRC Objection 08/18/94 
Obj. Removed 09/15/94 



TRANSPORTATION 
Division of Motor Vehicles 

19A NCAC 3D .0519 - Stations 

Agency Revised Rule 
19A NCAC 3D .0520 - Inspection Station Personnel 

Rule Withdrawn by Agency 
19 A NCAC 3D .0522 - Licensing Requirements 

Agency Revised Rule 
19A NCAC 3D .0523 - Denial, Suspension or Revocation of Licenses 

Agency Revised Rule 
19A NCAC 3D .0524 - Operation of Safety /Exhaust Emissions Inspection Stations 

Agency Revised Rule 
19A NCAC 3D . 0532 - Reinspection 

Agency Revised Rule 
19 A NCAC 3D .0533 - Brakes 

Agency Revised Rule 
19A NCAC 3D . 0534 - Lights 

Agency Revised Rule 
19A NCAC 3D .0544 - Inspection Procedure for Emissions Equipment 

Agency Revised Rule 
19A NCAC 3D .0549 - Operation to Replace Windshield Inspection Stickers 

Agency Revised Rule 
19 A NCAC 3D .0550 - Recognition of Safety Inspections Issued by Certain Other 

Rule Withdrawn by Agency 
19A NCAC 3D .0551 - Approval and Disapproval of Vehicles 

Agency Revised Rule 



RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 




09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 


Jurisdictions 






09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 



1217 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 

North CanUna Council for Women 

Family Violence Prevention Services v. N.C. Council for Women 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Jerry Lee McGowan v. Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. v. Entertainment Group, Inc. 

Alcoholic Beverage Control Comm. v. Daehae Chang 

Rayvon Stewart v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm. v. Brunch land. Inc. 

Alcoholic Beverage Control Comm. v. Peggy Sutton Walters 

Russell Bernard Speller d/b/a Cat's Disco v. Alcoholic Bev Ctl Comm. 

Alcoholic Beverage Control Comm. v. Branchland, Inc. 

Edward Ogunjobi, Club Piccadilli v. Alcoholic Beverage Control Comm. 

Robert Kovalaske, Nick Pikoulas, Joseph Marshburn, Evangelos Pikoulas, 

d/b/a Our Mom's BBQ v. Alcoholic Beverage Control Commission 
Christine George Williams v. Alcoholic Beverage Control Comm. 
Lynn Ann Garfagna v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm. v. Raleigh Limit, Inc. 
Alcoholic Beverage Control Comm. v. COLAP Enterprises, Inc. 
Alcoholic Beverage Control Comm. v. Mitch's Tavern, Inc. 
Alcoholic Beverage Control Comm. v. Ms. Lucy Jarrell Powell 
Alcoholic Beverage Control Comm. v. Richard Wayne Barrow 
Alcoholic Beverage Control Comm. v. Daphne Ann Harrell 
Mr. & Mrs. Josh Bullock Jr. v. Alcoholic Beverage Control Comm. 
Jerome Crawford v. Alcoholic Beverage Control Commission 
Lawrence Mungin v. Alcoholic Beverage Control Commission 
Willie Poole Jr. v. Alcoholic Beverage Control Commission 
Alonza Mitchell v. Alcoholic Beverage Control Commission 
Roy Dale Cagle v. Alcoholic Beverage Control Commission 
Christopher C. Gause, James A Jinwright v. Alcoholic Bev. Ctl. Comm. 
Rajaddin Abdelaziz v. Alcoholic Beverage Control Commission 

COMMERCE 



94 DOA 0242 



West 



04/13/94 



93 ABC 0363 


Morrison 


08/23/94 




93 ABC 0719 


Gray 


03/02/94 




93 ABC 0775 


Morrison 


09/21/94 




93 ABC 0793 


Nesnow 


04/1 1/94 




93 ABC 0892 


Morgan 


06/03/94 




93 ABC 0906 


Mann 


03/18/94 




93 ABC 0937 


Morrison 


03/07/94 




93 ABC 0993 


Morgan 


06/03/94 




93 ABC 1024 


West 


03/03/94 




93 ABC 1029 


Gray 


03/04/94 




93 ABC 1057 


Bee ton 


04/21/94 




93 ABC 1481 


Gray 


07/19/94 




93 ABC 1485 


Mann 


03/11/94 




94 ABC 0060 


Nesnow 


06/07/94 




94 ABC 0064 


Gray 


07/26/94 




94 ABC 0070 


Morgan 


06/06/94 




94 ABC 0079 


Gray 


10/14/94 




94 ABC 0115 


Nesnow 


07/18/94 




94 ABC 0124 


Morgan 


06/06/94 




94 ABC 0125 


Morgan 


06/06/94 




94 ABC 0149 


Chess 


08/08/94 




94 ABC 0232 


Chess 


09/02/94 




94 ABC 0257 


Morrison 


07/28/94 9:11 NCR 870 


94 ABC 0260 


West 


07/13/94 




94 ABC 0532 


Gray 


09/27/94 




94 ABC 0600 


Chess 


09/22/94 





Savings I nstituti ons Division 

James E. Byers, et al v. Savings Institutions 

CORRECTION 

Division of Prisons 

Gene Strader v. Department of Correction 

CRIME CONTROL AND PUBLIC SAFETY 

Joseph Guernsey & Parents, Robert Guernsey &. Dolores Guernsey 
v. Pitt County Hospital Eastern Radiologists 



93 COM 1622 Chess 03/01/94 



94 DOC 0252 



94 CPS 0413 



Morrison 03/21/94 



Gray 07/11/94 



9:15 



NORTH CAROLINA REGISTER 



November 1, 1994 



1218 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 

NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Crime Victims Compensation Commission 

Mae H. McMillan v. Crime Victims Compensation Commission 
James Hugh Baynes v. Crime Victims Compensation Commission 
Ross T. Bond v. Victims Compensation Commission 

James A. Canady v. Crime Victims Compensation Commission 

Virginia Roof v. Department of Crime Control & Public Safety 

Karen C. Tilghman v. Crime Victims Compensation Commission 

Rosemary Taylor v. Crime Victims Compensation Commission 

Violet E. Kline v. Crime Victims Compensation Commission 

James Benton v. Crime Victims Compensation Commission 

Percy Clark v. Crime Victims Compensation Commission 

J. Richard Spencer v. Crime Victims Compensation Commission 

Albert H. Walker v. Crime Victims Compensation Commission 

Barbara Henderson v. Crime Victims Compensation Commission 

Shirley Handsome v. Crime Victims Compensation Commission 

Georgeann Young v. Crime Victims Compensation Commission 

Lawrence L. Tyson v. Crime Victims Compensation Commission 

Ada Battle v. Crime Victims Compensation Commission 

Lyman L. Chapman v. Crime Victims Compensation Commission 

Douglas and Virginia Wilson v. Crime Victims Compensation Comm. 

Michelle L. Wilcox v. Crime Victims Compensation Commission 

Charlie E. McDonald v. Crime Victims Compensation Commission 

Michael G. Low v. Crime Victims Compensation Commission 

Maureen P. Wilson v. Crime Victims Compensation Commission 

Kay Thompson Chambers v. Crime Victims Compensation Commission 

James R. Gray v. Crime Victims Compensation Commission 

Hazel Jarvis v. Victims Compensation Commission 

Ifcttie Hale v. Victims Compensation Fund 

Dana Harris v. Crime Victims Compensation Commission 

Dorian Walter St. Patrick Scott v. Victims Compensation Comm. 

Mary E. Haskins v. Crime Victims Compensation Commission 



92 CPS 1328 


Morgan 


08/11/94 


93 CPS 0801 


West 


03/28/94 


93 CPS 1104 


West 


04/21/94 


93 CPS 1108 


Gray 


03/28/94 


93 CPS 1347 


Nesnow 


03/24/94 


93 CPS 1608 


Reilly 


05/17/94 


93 CPS 1626 


Nesnow 


05/25/94 


93 CPS 1670 


Morgan 


06/13/94 


94 CPS 0034 


Chess 


06/14/94 


94 CPS 0127 


Reilly 


04/19/94 


94 CPS 0157 


Chess 


06/14/94 


94 CPS 0229 


Reilly 


08/11/94 


94 CPS 0259 


Morrison 


04/07/94 


94 CPS 0286 


Gray 


04/28/94 


94 CPS 0292 


Reilly 


04/18/94 


94 CPS 0368 


Gray 


04/26/94 


94 CPS 0414 


Reilly 


08/23/94 


94 CPS 0415 


Chess 


06/02/94 


94 CPS 0417 


Reilly 


06/07/94 


94 CPS 0467 


Reilly 


06/07/94 


94 CPS 0468 


Gray 


09/02/94 


94 CPS 0524 


Morrison 


06/13/94 


94 CPS 0567 


Gray 


09/23/94 


94 CPS 0581 


Morrison 


09/28/94 


94 CPS 0603 


Reilly 


08/19/94 


94 CPS 0664 


Chess 


07/29/94 


94 CPS 0734 


West 


09/06/94 


94 CPS 0832 


Nesnow 


09/26/94 


94 CPS 0883 


Nesnow 


10/04/94 


94 CPS 1406 


Gray 


03/17/94 



9:2 NCR 114 



9:6 NCR 407 



9:13 NCR 1056 



EMPLOYMENT SECURITY COMMISSION 



David Lee Bush v. Employment Security Commission 
ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 



91 ESC 0395 



Reilly 



08/18/94 



Bobby Stallings v. Environment, Health, and Natural Resources 

James M. Lyles v. Brunswick County Office of PermitB 

William P. Shaver, R. McKinnon Morrison UJ, fill Ray, Dr. Wesley 

C. Ray, Douglas W. Furr, Catherine H. Furr & Caldwell Creek Farm, Inc. 

v. EHNR-State of North Carolina 
Ron D. Graham, Suzanne C. Graham v. Robert Cobb, Mecklenburg Cty 
Carnel D. Pearson Jr. v. Craven Co. Division of Health & DEHNR 
Patricia D. Solomon v. Macon County Health Department 
Elbert L. Winslow v. EHNR/Guilford Cty Health Dept. & Guilford Cty 

Planning & Zoning Board 
Kathryn A. Whitley v. Macon County Health Department 
Brook Hollow Estates v. Environment, Health, & Natural Resources 
Bobby Combs v. Public Water Supply Section 

Oceanfront Court, David C. Gagnon v. Environment, Health, & Nat. Res. 
Sam's Club #82 19 v. Mecklenburg County Health Department 
Everhart & Associates., Inc. and Hettie Tolson Johnson v. Environment, 

Health, and Natural Resources and Zelig Robinson 
Richard A. Jenkins v. NC Water Pollution Cll. Sys. Op. Cert. Comm. 
Eugene Crawford & Nancy P. Crawford v. Macon County Health Dept. 
Joseph B. Leggett v. Environment, Health, & Natural Resources 
Tri-Circuife, Inc. v. Environment, Health, & Natural Resources 
Irene, Will, Eric Litaker v. Montgomery County Health Department 



90EHR0612 


Morgan 


08/11/94 




92 EHR 0333 


Chess 


09/22/94 




93 EHR 0452 


Morgan 


08/11/94 




93 EHR 1017 


Becton 


05/31/94 




93 EHR 1759 


Mann 


09/06/94 




93 EHR 1777 


West 


05/23/94 




94 EHR 0086 


Chess 


07/13/94 




94 EHR 0088 


West 


07/13/94 




94 EHR 0093 


West 


06/03/94 




94 EHR 0202 


West 


10/19/94 




94 EHR 0210 


Chess 


06/21/94 




94 EHR 0329 


Nesnow 


06/15/94 


9:7 NCR 496 


94 EHR 0392 


Reilly 


10/18/94 


9:15 NCR 1231 


94 EHR 0424 


West 


10/11/94 




94 EHR 0500 


Gray 


06/10/94 




94 EHR 0560 


West 


09/21/94 




94 EHR 0601 


Morrison 


06/30/94 




94 EHR 0776 


Gray 


09/06/94 








1219 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 



CONTESTED CASE DECISIONS 



CASE 
NUMBER 



89 EHR 1378"* Gray 

90 EHR 0017* Gray 
90 EHR 0455 Morgan 

93 EHR 1792 Nesnow 

94 EHR 0315 Gray 



AGENCY 



Coastal Management 

Roger Fuller v. EHNR, Div. of Coastal Mgmt & Environmental Mgmt 
Roger Fuller v. EHNR, Div. of Coastal Mgmt & Environmental Mgmt 
[ohn R. Hooper v. EHNR, Div./Coaatal Mgmt & Bird's Nest Partnership 
Gary E. Montalbine v. Division of Coastal Management 
Paley-Midgett Partnership v. Coastal Resources Commission 

Environmental Health 

Jane C. CMalley, Melvin L. Cartwright v. EHNR & District Hlth Dept 

Pasqu otank Pe rqu i mans-Camden-Chowan 
Henry Lee Bulluck v. Nash County Health Department & EHNR 
Environment, Health, & Natural Res. v. Clark Harris & Jessie Lee Harris 
Richard F. Ebeisold v. Jackson County Health Department & EHNR 
Sidney S. Tate Jr. v. Dept. of Environment, Health, & Natural Resources 
George A Waugh, Shirley A. Waugh v. Carteret Cty Health & Env. Hlth 
Scotland Water Co., Laurin Lakes v. Environment, Health, & Nat. Res. 
H.A. Lentz v. Department of Environment, Health, & Natural Resources 
Floyd Benn Williams v. Dept. of Environment, Health, & Nat. Res. 

Environmental Management 

David Springer v. Dept. of Environment, Health, & Natural Resources 
Petroleum Installation Equipment Co., Inc. v. Env., Health & Nat. Res. 
Jack Griffin v. Dept. of Environment, Health, and Natural Resources 
Woolen Oil Company v. EHNR, Div of Environmental Management 
John G. Owens & J.B.S. Mechanical Svcs, Inc. v. EHNR, Env. Mgmt. 

Land Resources 



Wallace B. Clayton, Dr. Marshall Redding v. Div. of Land Resources 93 EHR 1407 

Town of Kernereville (LQS 93-053) v. Environment, Health, & Nat. Res. 93 EHR 1781 

Royce Perry, Paul Perry v. Dept. of Environment, Health, & Natural Res. 94 EHR 0525 

Marine Fisheries 



Robert I. Swinson, Virginia S. Swinson v. EHNR, Div/Marine Fisheries 

Larry J. Batson v. Division of Marine Fisheries 

David W. Oglesby v. Division of Marine Fisheries 

David E. Oglesby v. Division of Marine Fisheries 

James Goodman v. EHNR, Division of Marine Fisheries 

Billy Ervin Burton v. Division of Marine Fisheries 

Maternal and Child Health 

W1C Section 



ALJ 



DATE OF 
DECISION 



04/07/94 
04/07/94 
08/11/94 
03/21/94 
06/01/94 



PUBLISHED DECISION 
REGLSTER CITATION 



91 EHR 0838 


Bee ton 


04/06/94 


93 EHR 0348 


Morgan 


07/22/94 


93 EHR 0924 


Bee ton 


03/03/94 


93 EHR 1391 


Chess 


06/24/94 


94 EHR 0005 


Reilly 


05/24/94 


94 EHR 0128 


Chess 


07/13/94 


94 EHR 0200 


Nesnow 


04/27/94 


94 EHR 0235 


Nesnow 


07/19/94 


94 EHR 0333 


Reilly 


05/18/94 



92 EHR 1797 


Morgan 


05/19/94 


93 EHR 0531 


Chess 


03/21/94 


93 EHR 1030 


Bee ton 


03/21/94 


94 EHR 0001 


West 


09/30/94 


94 EHR 0024 


Mann 


09/07/94 



Morgan 


08/09/94 




Chess 


06/29/94 


9:8 NCR 


Gray 


07/01/94 





581 



93 EHR 0394 


Gray 


04/11/94 






93 EHR 0857 


Morgan 


07/22/94 






93 EHR 0930" 


West 


07/25/94 


9:10 NCR 


758 


93 EHR 0931* 


West 


07/25/94 


9:10 NCR 


758 


94 EHR 0035 


Nesnow 


07/18/94 


9:9 NCR 


660 


94 EHR 0504 


Nesnow 


09/01/94 







Anthony Awueah v. EHNR, Div. Maternal & Child Health, WIC Section 94 EHR 0718 Chess 



09/23/94 



Solid Waste Management 

Roger Sessoms v. EHNR/ Asbestos Hazard Management Branch 93 EHR 095 1 Gray 

Bertie Citizens Action Coalition, Inc.; Willard J. Oliver, Reginald Early, 93 EHR 1045 Morrison 

Herbert Jenkins, Jr. , Lindwood Earl Tripp, Willie Warren Tripp, Mary 

Alice Cherry, and Kathy Burden v. EHNR, Solid Waste Management 

Division, and East Carolina Environmental, Inc., Aldington Environmental, 

Inc., el al. 
Bobby Benton v. EHNR & Division of Solid Waste 94 EHR 0442 Gray 



03/28/94 
04/06/94 



08/22/94 



9:3 NCR 



214 



* Consolidated Cases. 



9:15 



NORTH CAROLINA REGISTER 



November 1, 1994 



1220 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 

REGISTER CITATION 



HUMAN RESOURCES 



Jerome TripHn v. Department of Human Resources 

Helen J. Walls, Walls Young World v. Department of Human Resources 

B reiki a C. Robinson v. Department of Human Resources 

Betty Rhodes v. Department of Human Resources 

Distribution Child Support 

Mona L. Stanback v. DHR, Div/Social Svcs, Child Support Enf. Section 
Jachell D. Parker v. Department of Human Resources 
Earleen G. Tinsley v. Department of Human Resources 

Division of Child Development 

Judith Fridley v. Div. of Child Development/ Abuse /Neglect Unit 

DHR, Division of Child Development v. Joyce Gale 

Laureen Holt, ID#26-0-00037 v. DHR, Div. of Child Development 

Gloria C. Haith v. Department of Human Resources 

Gloria C. Haith v. Daycare Consultant 

Charles E. Smith v. Department of Human Resources 

Scott's Loving Day Care & Nursery, Mrs. Willie L. Scott v. DHR 

Belinda K. Mitchell v. Human Resources, Div. of Child Development 

Living Word Day Care, Jonathan Lank ford v. Dept. of Human Resources 

David G. Whitted, Pres., Toddles Academy, Inc. v. Div of Child Dev. 

Facility Services 

Laura Harvey Williams v. DHR, Division of Facility Services 

Presbyterian-Orthopaedic Hospital v. Department of Human Resources 

Judy Hoben Wallace v. Department of Human Resources 

Lowell Stafford v. Department of Human Resources 

Willie J. McCombe v. Human Resources, Div. of Facility Services 

Mr. & Mrs. Alvin Wilson v. DHR, Division of Facility Services 

Certificate of Need Section 

Charles E. Hunter, Jr., M.D. & Coastal Perfusion Svcs, Inc. v. 

Department of Human Resources, and Wilmington Perfusion 

Corp. and Howard F. Marks, Jr., M.D. 
Cape Fear Memorial Hospital v. Department of Human Resources 
The Carrolton of Fayetteville, Inc. v. Department of Human Resources 

and 
Highland House of Fayetteville, Inc. & Richaid R. Allen Sr. v. DHR 
The Carrolton of Fayetteville* Inc. v. Department of Human Resources 

and 
Highland House of Fayetteville, Inc. & Richaid R. Allen Sr. v. DHR 

Division of Medical Assistance 

J.R., by and through her agent & Personal Rep., Hank Neal v. DHR 
N.R. by & through her agt & personal rep E.C.J, v. DHR, Medical Assis. 
David Yott v. Department of Human Resources 

Sampson County Memorial Hospital v. DHR, Div of Medical Assistance 
Division of Medical Assistance v. Catawba Cty Dept. of Social Services 
Lu Ann Leidy, MD/Dorothea Dix Hosp. Child & Youth v. Medical Assis. 

Division of Social Services 

Evelyn Moore v. Department of Human Resources 

Nathaniel Harrell, Annie Harrell v. Department of Social Services 

Child Support Enforcement Section 

Alfred Bennett v. Department of Human Resources 
Shellon Staples v. Department of Human Resources 
Helen Lee Harvell Jones v. Department of Human Resources 
DaJton Felton Sr. v. Department of Human Resources 



93 DHR 0108 


Reilly 


08/19/94 


93 DHR 0965 


Morgan 


08/11/94 


94 DHR 0365 


West 


06/01/94 


94 DHR 0501 


Morrison 


06/02/94 



93 DCS 0969 


Morgan 


08/02/94 


93 DCS 0371 


Morgan 


07/14/94 


94 DCS 0651 


Nesnow 


09/15/94 



93 DHR 0973 


Morrison 


03/08/94 


93 DHR 1344 


Gray 


04/28/94 


93 DHR 1549 


Bee ton 


07/13/94 


93 DHR 1707 


Nesnow 


03/22/94 


93 DHR 1787 


Nesnow 


03/14/94 


93 DHR 1797 


Nesnow 


03/21/94 


94 DHR 0106 


Nesnow 


06/29/94 


94 DHR 0119 


Reilly 


06/30/94 


94 DHR 0168 


Nesnow 


03/23/94 


94 DHR 0453 


Mann 


09/23/94 



93 DHR 0391 


Morgan 


08/11/94 


93 DHR 0805 


Reilly 


03/11/94 


93 DHR 0935 


Gray 


05/23/94 


93 DHR 1381 


Gray 


04/15/94 


94 DHR 0430 


Gray 


09/29/94 


94 DHR 0559 


Chess 


08/25/94 



93 DHR 0746 Morgan 04/11/94 



93 DHR 1552 Reilly 08/15/94 

94 DHR 0197** Morgan 08/11/94 



94DHR0198*> Morgan 08/11/94 



93 DHR 0528 


Gray 


04/27/94 


93 DHR 0538 


Chess 


07/01/94 


93 DHR 1113 


Gray 


04/05/94 


93 DHR 1760 


West 


09/07/94 


93 DHR 1778 


West 


03/04/94 


94 DHR 0448 


Chess 


06/21/94 



94 DHR 0293 
94 DHR 0440 



Reilly 
Gray 



04/15/94 
06/27/94 



90CSE 1146 


Morgan 


08/11/94 


91 CSE0660 


Morgan 


08/11/94 


91 CSE 1183 


Morgan 


08/11/94 


92 CSE 0532 


Morgan 


07/13/94 



1221 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 



CONTESTED CASE DECISIONS 



AGENCY 



Colby S. Hughes v. Department of Human Resources 

Gary Eugene Honeycutt v. Department of Human Resources 

VickJ C. Conn v. Department of Human Resources 

John R. Lossiab v. Department of Human Resources 

Melvin L. Miller Sr. v. Department of Human Resources 

Robert L. Hicks v. Department of Human Resources 

Thomas Sadler v. Department of Human Resources 

Darryl D. Leedy v. Department of Human Resources 

David M. Fogleman Jr. v. Department of Human Resources 

William Heckstall v. Department of Human Resources 

Luther Hatcher v. Department of Human Resources 

Bryan Jeffrey Cole v. Department of Human Resources 

Anthony E. Bullae! v. Department of Human Resources 

Donald E. Height v. Department of Human Resources 

Dexter L. Chambers v. Department of Human Resources 

Ronald E. Johnson v. Department of Human Resources 

Roger Moore v. Department of Human Resources 

Alvtn Lee Martin v. Department of Human Resources 

James J. Malloy v. Department of Human Resources 

Robert Young v. Department of Human Resources 

Henry M. Dillaid v. Department of Human Resources 

Vernon Byrd v. Department of Human Resources 

Antonio Townsend v. Department of Human Resources 

Keith M. Gray v. Department of Human Resources 

Troy E. Pinkney v. Department of Human Resources 

Anthony A. Macon v. Department of Human Resources 

Walter Lee Corbett v. Department of Human Resources 

Joseph E. Kernstine v. Department of Human Resources 

Alvin M. Davis v. Department of Human Resources 

Thomas M. Birdwell III v. Department of Human Resources 

Joe Louis Mayo v. Department of Human Resources 

Bobby Lewis Smith v. Department of Human Resources 

Louis C. Cade v. Department of Human Resources 

Richard J. Swarm v. Department of Human Resources 

Nash Andrew Newsome v. Department of Human Resources 

James E. Watson v. Department of Human Resources 

Robert Lee Barrett v. Department of Human Resources 

Betty A. Williams, Fred E. Jones v. Department of Human Resources 

Jeff A. Taylor v. Department of Human Resources 

Eric G. Sykes v. Department of Human Resources 

Tcrrence D. Timmons v. Department of Human Resources 

Ray A. Johnstone v. Department of Human Resources 

Morris Ray Bethel v. Department of Human Resources 

Willie C Hollis v. Department of Human Resources 

Edward Boggan v. Department of Human Resources 

Raymond Junior Caglc v. Department of Human Resources 

Ernest N. Pruitt Jr. v. Department of Human Resources 

Michael R McCsy v. Department of Human Resources 

Robert Matthew Rossi v. Department of Human Resources 

Bernadetfc Cook v. Department of Human Resources 

Rawan Weigel v. Department of Human Resources 

Lem Person v. Department of Human Resources 

Bobby Lee McCullers Jr. v. Department of Human Resources 

Randall R. Rhodes v. Department of Human Resources 

Glen Nelson Washington v. Department of Human Resources 

Michael V. Dockery v. Department of Human Resources 

Robert Corley Jr. v. Department of Human Resources 

Floyd E. Bailey v. Department of Human Resources 

Dennis W. Nolan v. Department of Human Resources 

Robert Calvin Connor v. Department of Human Resources 

James D. Williams v. Department of Human Resources 

Mahalon Eugene White v. Department of Human Resources 

Marty Franzen v. Department of Human Resources 

Vaughn D. Pearsall v. Department of Human Resources 

Gerald L. Murrell v. Department of Human Resources 

Larry D. Dawson v. Department of Human Resources 

McDaniel Teeter Jr. v. Department of Human Resources 

King D. Graham v. Department of Human Resources 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


AU 


DECISION REGISTER CITATION 


92 CSE 1 199 


Morgan 


08/10/94 


92 CSE 1207 


Morgan 


08/10/94 


92 CSE 1268 


Morgan 


08/10/94 


92 CSE 1345 


Mann 


10/13/94 


92 CSE 1372 


Morgan 


08/10/94 


92 CSE 1591 


Morgan 


08/10/94 


92 CSE 1739 


Bee ton 


10/18/94 


93 CSE 0591 


Morgan 


08/11/94 


93 CSE 1074 


Mann 


10/10/94 


93 CSE 1077 


Reilly 


03/14/94 


93 CSE 1082 


Mann 


05/24/94 


93 CSE 1091 


Bee ton 


03/30/94 


93 CSE 1094 


Nesnow 


06/13/94 


93 CSE 1110 


Morgan 


08/11/94 


93 CSE 1 124 


West 


03/28/94 


93 CSE 1125 


Becton 


03/30/94 


93 CSE 1 127 


Bee ton 


04/14/94 


93 CSE 1128 


Nesnow 


04/04/94 


93 CSE 1 132 


Gray 


10/03/94 


93 CSE 1 133 


Reilly 


04/18/94 


93 CSE 1 135 


Nesnow 


06/13/94 


93 CSE 1136 


Becton 


08/22/94 


93 CSE 1139 


Bee ton 


03/30/94 


93 CSE 1140 


Nesnow 


06/28/94 


93 CSE 1148 


Mann 


03/29/94 


93 CSE 1 149 


Gray 


04/26/94 


93 CSE 1150 


Reilly 


03/30/94 


93 CSE 1151 


Morgan 


07/15/94 


93 CSE 1 152 


Morgan 


08/04/94 


93 CSE 1 155 


Morgan 


08/02/94 


93 CSE 1161 


West 


04/19/94 


93 CSE 1162 


Nesnow 


06/16/94 


93 CSE 1166 


Morrison 


06/16/94 


93 CSE 1167 


Reilly 


06/17/94 


93 CSE 1170 


Mann 


03/17/94 


93 CSE 1171 


Gray 


04/26/94 


93 CSE 1172 


Morrison 


04/20/94 


93 CSE 1178 


Nesnow 


04/20/94 


93 CSE 1180 


Morgan 


07/15/94 


93 CSE 1181 


Becton 


04/20/94 


93 CSE 1183 


Becton 


10/11/94 


93 CSE 1186 


Morrison 


10/03/94 


93 CSE 1188 


West 


07/11/94 


93 CSE 1191 


Becton 


05/09/94 


93 CSE 1192 


Chess 


09/01/94 


93 CSE 1 194 


Morrison 


10/03/94 


93 CSE 1197 


Nesnow 


06/28/94 


93 CSE 1198 


Morgan 


08/02/94 


93 CSE 1199 


Becton 


08/22/94 


93 CSE 1202 


Gray 


04/27/94 


93 CSE 1212 


Gray 


08/26/94 


93 CSE 1214 


Morrison 


06/16/94 


93 CSE 1215 


Reilly 


06/17/94 


93 CSE 1219 


Nesnow 


06/16/94 


93 CSE 1221 


Morgan 


08/02/94 


93 CSE 1222 


Morgan 


07/15/94 


93 CSE 1225 


Chess 


10/05/94 


93 CSE 1227 


Mann 


07/07/94 


93 CSE 1254 


Morrison 


04/27/94 


93 CSE 1258 


West 


04/19/94 


93 CSE 1259 


West 


04/19/94 


93 CSE 1261 


Nesnow 


08/22/94 


93 CSE 1264 


Morgan 


07/15/94 


93 CSE 1267 


Becton 


04/20/94 


93 CSE 1271 


Gray 


08/26/94 


93 CSE 1273 


Morrison 


07/07/94 


93 CSE 1274 


Morrison 


06/30/94 


93 CSE 1275 


Becton 


05/18/94 



9:15 



NORTH CAROLINA REGISTER 



November I, 1994 



1222 



CONTESTED CASE DECISIONS 



AGENCY 



Brian C. Carelock v. Department of Human Resources 
Bradford C. Lewis v. Department of Human Resources 
Derek Wateon v. Department of Human Resources 
Luther Borden v. Department of Human Resources 
Walter B. Lester v. Department of Human Resources 
Wilhert E. Anderson v. Department of Human Resources 
David H. Johnson v. Department of Human Resources 
William Earl Arlington v. Department of Human Resources 
William K. Whisenant v. Department of Human Resources 
Curtis C. Osborne v. Department of Human Resources 
Stanley J. Forsack v. Department of Human Resources 
Larry Cornelius Smith v. Department of Human Resources 
Robert C. Lee Jr. v. Department of Human Resources 
Sidney Ray Tuggle Jr. v. Department of Human Resources 
Michael A. Amos v. Department of Human Resources 
Reginald Eugene Hill v. Department of Human Resources 
John Edward Tannehill v. Department of Human Resources 
Benjamin McCormick v. Department of Human Resources 
Steven Connet v. Department of Human Resources 
Gregory N. Winley v. Department of Human Resources 
Ronald Brown v. Department of Human Resources 
Ronald Fred Mctzger v. Department of Human Resources 
James L. Phillips v. Department of Human Resources 
George Aaron Collins v. Department of Human Resources 
Ricky Glenn Mabe v. Department of Human Resources 
Samuel L. Dodd v. Department of Human Resources 
James W. Smith v. Department of Human Resources 
William A. Sellers v. Department of Human Resources 
Jerry Mclver v. Department of Human Resources 
Johnny B. Little v. Department of Human Resources 
Kenneth W. Cooper v. Department of Human Resources 
Nathan D. Winston v. Department of Human Resources 
Bobby Charles Coleman v. Department of Human Resources 
Anthony Curry v. Department of Human Resources 
Charles W. Norwood Jr. v. Department of Human Resources 
David L. Terry v. Department of Human Resources 
Audwin Lindsay v. Department of Human Resources 
Steven A. Elmquist v. Department of Human Resources 
Kelvin Dean JackBon v. Department of Human Resources 
Jerry R. Gibson v. Department of Human Resources 
Melvin Lewis Griffin v. Department of Human Resources 
Dennis E. Fountain Jr. v. Department of Human Resources 
Mark E. Rogers v. Department of Human Resources 
Daniel J. McDowell v. Department of Human Resources 
Edna \onCannon v. Department of Human Resources 
Darron J. Robert v. Department of Human Resources 
Ephrom Sparkman Jr. v. Department of Human Resources 
Thomas A. Ayers v. Department of Human Resources 
Daniel Thomas Hefele v. Department of Human Resources 
Gilbert J. Gutierrez v. Department of Human Resources 
Alton D. Johnson v. Department of Human Resources 
Darryl C. Thompson v. Department of Human Resources 
Jeffery E. Holley v. Department of Human Resources 
Chester Sanders v. Department of Human Resources 
Rodney Guyton v. Department of Human Resources 
Nelson Bennett v. Department of Human Resources 
Donald W. Clark v. Department of Human Resources 
William E. David Jr. v. Department of Human Resources 
Arthur Lee Carter v. Department of Human Resources 
Frank Reiff v. Department of Human Resources 
John J. Gabriel v. Department of Human Resources 
Robert Hayes v. Department of Human Resources 
Donald Ray Copeland v. Department of Human Resources 
Clark Anthony Bryant v. Department of Human Resources 
Timothy D. Evans v. Department of Human Resources 
Billy Edward Smith v. Department of Human Resources 
Allen D. Terrell v. Department of Human Resources 
Ray C. Moses v. Department of Human Resources 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION REGISTER CITATION 


93 CSE 1276 


Mann 


10/13/94 


93 CSE 1278 


Mann 


10/13/94 


93 CSE 1283 


Rcilly 


06/30/94 


93 CSE 1284 


West 


06/23/94 


93 CSE 1287 


Nesnow 


06/28/94 


93 CSE 1288 


Nesnow 


10/12/94 


93 CSE 1289 


Mann 


10/14/94 


93 CSE 1290 


Mann 


10/14/94 


93 CSE 1291 


Bee ton 


08/22/94 


93 CSE 1299 


Gray 


09/19/94 


93 CSE 1301 


Morrison 


08/23/94 


93 CSE 1302 


Morrison 


06/30/94 


93 CSE 1303 


Reilly 


06/30/94 


93 CSE 1307 


West 


04/25/94 


93 CSE 1308 


West 


07/15/94 


93 CSE 1309 


West 


10/06/94 


93 CSE 1312 


Nesnow 


10/03/94 


93 CSE 1313 


Morgan 


08/02/94 


93 CSE 1315 


Mann 


10/14/94 


93 CSE 1316 


Becton 


06/14/94 


93 CSE 1318 


Bccton 


06/29/94 


93 CSE 1323 


Mann 


09/26/94 


93 CSE 1326 


Reilly 


06/17/94 


93 CSE 1331 


West 


04/25/94 


93 CSE 1356 


Mann 


09/26/94 


93 CSE 1357 


Gray 


03/31/94 


93 CSE 1358 


Gray 


08/26/94 


93 CSE 1359 


Morrison 


04/20/94 


93 CSE 1362 


Reilly 


06/30/94 


93 CSE 1363 


West 


06/23/94 


93 CSE 1364 


West 


04/27/94 


93 CSE 1365 


Nesnow 


07/07/94 


93 CSE 1368 


Morgan 


08/02/94 


93 CSE 1371 


Chess 


08/18/94 


93 CSE 1385 


West 


06/13/94 


93 CSE 1386 


Mann 


05/18/94 


93 CSE 1390 


Morrison 


07/15/94 


93 CSE 1392 


Reilly 


04/29/94 


93 CSE 1394 


West 


06/13/94 


93 CSE 1411 


Nesnow 


08/24/94 


93 CSE 1412 


Morgan 


08/02/94 


93 CSE 1414 


Chess 


05/13/94 


93 CSE 1415 


Mann 


05/03/94 


93 CSE 1416 


Gray 


09/19/94 


93 CSE 1417 


Morrison 


06/14/94 


93 CSE 1419 


West 


08/23/94 


93 CSE 1422 


Morgan 


08/04/94 


93 CSE 1431 


Morrison 


06/30/94 


93 CSE 1432 


Morrison 


04/28/94 


93 CSE 1433 


Morrison 


05/13/94 


93 CSE 1434 


Reilly 


04/29/94 


93 CSE 1435 


Reilly 


06/30/94 


93 CSE 1436 


Reilly 


08/23/94 


93 CSE 1437 


West 


04/19/94 


93 CSE 1439 


West 


04/21/94 


93 CSE 1440 


Nesnow 


08/31/94 


93 CSE 1441 


Nesnow 


05/13/94 


93 CSE 1442 


Nesnow 


05/02/94 


93 CSE 1445 


Morgan 


08/10/94 


93 CSE 1448 


Becton 


08/22/94 


93 CSE 1452 


Chess 


05/16/94 


93 CSE 1453 


Mann 


07/07/94 


93 CSE 1454 


Mann 


10/10/94 


93 CSE 1455 


Gray 


06/30/94 


93 CSE 1460 


Reilly 


04/28/94 


93 CSE 1461 


West 


04/19/94 


93 CSE 1463 


Nesnow 


05/02/94 


93 CSE 1464 


Nesnow 


04/28/94 



1223 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 



CONTESTED CASE DECISIONS 



AGENCY 



Mickey Bridget! v. Department of Human Resources 
Stephen L. Brown v. Department of Human Resources 
David Beduhn v. Department of Human Resources 
Bart Ransom v. Department of Human Resources 
William H. Simpson Sr. v. Department of Human Resources 
Clarence J. Gat ling Jr. v. Department of Human Resources 
James D. McClure Jr. v. Department of Human Resources 
Christopher Ivan Smith v. Department of Human Resources 
Douglas L. Cherrix v. Department of Human Resources 
Dwayne Lamont Thompson v. Department of Human Resources 
Michael Edwin Smith v. Department of Human Resources 
Horace Lee Bass v. Department of Human Resources 
Michael Wilder v. Department of Human Resources 
William Howard Wright v. Department of Human Resources 
James A. Cephas v. Department of Human Resources 
Edward E. Furr v. Department of Human Resources 
James W. Ragsdale v. Department of Human Resources 
Mark E. Campbell v. Department of Human Resources 
\fernon Lamont Weaver v. Department of Human Resources 
Jesse 6. McAfee v. Department of Human Resources 
William Ellis v. Department of Human Resources 
Henry A. Harriel Jr. v. Department of Human Resources 
John H. Fortner Jr. v. Department of Human Resources 
Mike Johnson v. Department of Human Resources 
Carl E. Crump v. Department of Human Resources 
Herman F. Jacobs Jr. v. Department of Human Resources 
Harriet Easterling v. Department of Human Resources 
Dorscy L. Johnson v. Department of Human Resources 
Wade A. Burgess v. Department of Human Resources 
Billy Dale Beaney v. Department of Human Resources 
Gregory Harrell v. Department of Human Resources 
James E. Wiggins Sr. v. Department of Human Resources 
Tony A. Draughon v. Department of Human Resources 
Gregory L. Rimmer v. Department of Human Resources 
Ruben Jonathan Bostillo v. Department of Human Resources 
Timothy J. Jones v. Department of Human Resources 
Randall E. Hunter v. Department of Human Resources 
Cyrus R. Luallen v. Department of Human Resources 
Willie Hawkins v. Department of Human Resources 
B. A. Sellen v. Department of Human Resources 
Gary T. Hudson v. Department of Human Resources 
Alton E. Simpson Jr. v. Department of Human Resources 
Johnny T. Usher v. Department of Human Resources 
Tun H. Maxwell v. Department of Human Resources 
Charles Darrell Matthews v. Department of Human Resources 
John William \fence Jr. v. Department of Human Resources 
Bobby R. SandeiB v. Department of Human Resources 
Michael S. Rhynes v. Department of Human Resources 
Gerry Bernard Whitfield v. Department of Human Resources 
Denise L. Smith v. Department of Human Resources 
Brian Gil more v. Department of Human Resources 
Jesse Jeremy Bullock v. Department of Human Resources 
Jeffrey Alston v. Department of Human Resources 
Ronald E. Loweke v. Department of Human Resources 
Robert D. I^rker v. Department of Human Resources 
Charles F. McKirahan Jr. v. Department of Human Resources 
Bennie E. Hicks v. Department of Human Resources 
Herbert Council v. Department of Human Resources 
Richard Rachel v. Department of Human Resources 
Alan V. Teubert v. Department of Human Resources 
Henry L. Ward Jr. v. Department of Human Resources 
Benjamin J. Stroud v. Department of Human Resources 
Charles Leonard Fletcher v. Department of Human Resources 
Tony A. Miles v. Department of Human Resources 
Dwayne L. Allen v. Department of Human Resources 
Earl Newkirk Jr. v. Department of Human Resources 
Reginald Rorie v. Department of Human Resources 
James Edward Penley v. Department of Human Resources 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


93 CSE 1468 


Becton 


05/24/94 


93 CSE 1470 


Chess 


09/27/94 


93 CSE 1494 


Gray 


08/30/94 


93 CSE 1495 


Morrison 


04/29/94 


93 CSE 1497 


West 


04/19/94 


93 CSE 1499 


Morgan 


08/02/94 


93 CSE 1500 


Becton 


05/13/94 


93 CSE 1510 


Gray 


07/07/94 


93 CSE 1512 


Gray 


05/13/94 


93 CSE 1515 


Morrison 


04/21/94 


93 CSE 1517 


Morrison 


08/26/94 


93 CSE 1520 


Morrison 


05/13/94 


93 CSE 1521 


Reilly 


04/28/94 


93 CSE 1522 


Reilly 


08/26/94 


93 CSE 1523 


Reilly 


05/13/94 


93 CSE 1524 


Reilly 


06/17/94 


93 CSE 1528 


Reilly 


10/12/94 


93 CSE 1537 


Nesnow 


05/19/94 


93 CSE 1538 


Nesnow 


09/23/94 


93 CSE 1539 


Nesnow 


09/26/94 


93 CSE 1540 


Morgan 


08/02/94 


93 CSE 1541 


Morgan 


08/04/94 


93 CSE 1542 


Morgan 


08/02/94 


93 CSE 1544 


Morgan 


08/04/94 


93 CSE 1545 


Becton 


09/23/94 


93 CSE 1557 


Chess 


09/27/94 


93 CSE 1560 


Mann 


05/18/94 


93 CSE 1565 


Gray 


09/19/94 


93 CSE 1568 


Morrison 


04/28/94 


93 CSE 1569 


Morrison 


05/13/94 


93 CSE 1570 


Morrison 


08/26/94 


93 CSE 1571 


Morrison 


05/13/94 


93 CSE 1572 


Reilly 


07/07/94 


93 CSE 1573 


Reilly 


09/23/94 


93 CSE 1574 


Reilly 


09/01/94 


93 CSE 1576 


West 


04/19/94 


93 CSE 1579 


West 


04/19/94 


93 CSE 1583 


Nesnow 


06/16/94 


93 CSE 1585 


Morgan 


08/02/94 


93 CSE 1586 


Morgan 


08/02/94 


93 CSE 1590 


Becton 


09/23/94 


93 CSE 1591 


Becton 


04/20/94 


93 CSE 1592 


Chess 


05/19/94 


93 CSE 1594 


Chess 


06/30/94 


93 CSE 1596 


West 


06/13/94 


93 CSE 1597 


Becton 


05/13/94 


93 CSE 1598 


Nesnow 


07/25/94 


93 CSE 1599 


Nesnow 


06/30/94 


93 CSE 1601 


Gray 


10/14/94 


93 CSE 1603 


Chess 


08/18/94 


93 CSE 1615 


Chess 


05/13/94 


93 CSE 1632 


Morrison 


06/14/94 


93 CSE 1634 


Morrison 


09/28/94 


93 CSE 1635 


Reilly 


06/17/94 


93 CSE 1637 


Reilly 


06/29/94 


93 CSE 1640 


West 


06/14/94 


93 CSE 1641 


Nesnow 


07/25/94 


93 CSE 1643 


Nesnow 


07/25/94 


93 CSE 1644 


Morgan 


08/02/94 


93 CSE 1645 


Morgan 


08/10/94 


93 CSE 1646 


Morgan 


08/02/94 


93 CSE 1648 


Becton 


05/19/94 


93 CSE 1649 


Becton 


07/20/94 


93 CSE 1654 


Mann 


05/24/94 


93 CSE 1655 


Mann 


05/17/94 


93 CSE 1680 


Morrison 


08/26/94 


93 CSE 1683 


Gray 


10/14/94 


93 CSE 1714 


Mann 


09/26/94 



PUBLISHED DECISION 
REGISTER CITATION 



9:15 



NORTH CAROLINA REGISTER 



November 1, 1994 



1224 



CONTESTED CASE DECISIONS 



AGENCY 



Joe C. Dean v. Department of Human Resources 
Vernon Bullock v. Department of Human Resources 
Jessie Liles v. Department of Human Resources 
Raymond Scott Eaton v. Department of Human Resources 
Nelson Fowler Jr. v. Department of Human Resources 
Royston D. Blandford HI v. Department of Human Resources 
Kenneth B. Taylor v. Department of Human Resources 
Ronald Erwin Williams v. Department of Human Resources 
Michael L. FrankB v. Department of Human Resources 
Donnie W. Craghead v. Department of Human Resources 
Billy D Gibson v. Department of Human Resources 
Ronald Garrett v. Department of Human Resources 
Ervin C. Harvey v. Department of Human Resources 
Wanda Jean Lee Daniels v. Department of Human Resources 
Charles E. Colston v. Department of Human Resources 
Daron Wayne Smith v. Department of Human Resources 
John D. Melton v. Department of Human Resources 
Michael Lynn Jones v. Department of Human Resources 
Grayson Kelly Jones v. Department of Human Resources 
Larry Hayes v. Department of Human Resources 
Richard Eugene Dunn v. Department of Human Resources 
Timothy R. Abraham v. Department of Human Resources 
Fred Thompson Jr. v. Department of Human Resources 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION REGISTER CITATION 


93 CSE 1715 


Gray 


05/23/94 


93 CSE 1743 


Nesnow 


07/07/94 


93 CSE 1757 


Morgan 


08/02/94 


93 CSE 1761 


Bee ton 


06/29/94 


94 CSE 0039 


Mann 


10/10/94 


94 CSE 0095 


West 


04/19/94 


94 CSE 0113 


Bee ton 


10/11/94 


94 CSE 0141 


Bee ton 


09/23/94 


94 CSE 0142 


Chess 


08/16/94 


94 CSE 0163 


Mann 


09/26/94 


94 CSE 0166 


Mann 


09/26/94 


94 CSE 0227 


Reilly 


08/22/94 


94 CSE 0247 


Becton 


08/22/94 


94 CSE 0266 


Morgan 


08/02/94 


94 CSE 0280 


Reilly 


08/30/94 


94 CSE 0300 


Gray 


06/27/94 


94 CSE 0324 


Nesnow 


07/25/94 


94 CSE 0402 


Morgan 


08/02/94 


94 CSE 0433 


West 


09/15/94 


94 CSE 0456 


Nesnow 


08/22/94 


94 CSE 0494 


West 


07/29/94 


94 CSE 0595 


Reilly 


10/12/94 


94 CSE 0639 


Morrison 


08/31/94 



JUSTICE 



Alarm Systems Licensing Board 



Alarm Systems Licensing Board v. George P. Baker 
Patrick P. Sassman v. Alarm Systems Licensing Board 
Christopher Pate v. Alarm Systems Licensing Board 



93 DOJ 0457 


Nesnow 


03/10/94 


94 DOJ 0709 


Chess 


09/12/94 


94 DOJ 0710 


Chess 


09/12/94 



Private Protective Services Board 



Rex Allen Jefferies v. Private Protective Services Board 
Larry C. Hopkins v. Private Protective Services Board 
Gregory K. BrookB v. Private Protective Services Board 
Stephen M. Rose v. Private Protective Services Board 
Lemuel Lee Clark Jr. v. Private Protective Services Board 
Dexter R. Usher v. Private Protective Services Board 
Frankje L. McKoy v. Private Protective Services Board 
Michael L. Bonner v. Private Protective Services Board 
Johnny R. Dollar v. Private Protective Services Board 



93 DOJ 0647 


Reilly 


08/01/94 


93 DOJ 1618 


Morrison 


03/07/94 


94 DOJ 0008 


Nesnow 


06/28/94 


94 DOJ 0359 


Nesnow 


05/19/94 


94 DOJ 0360 


Nesnow 


05/19/94 


94 DOJ 0648 


Reilly 


08/15/94 


94 DOJ 0706 


Chess 


09/09/94 


94 DOJ 0794 


Morrison 


09/14/94 


94 DOJ 0796 


Morrison 


08/24/94 



Training and Standards Division 



Curtiss Lance ftrteat v. Criminal Justice Ed. & Training Stds. Comm. 
Willie David Moore v. Criminal Justice Ed. & Training Shis. Comm. 
Glenn Travis Stout v. Criminal Justice Ed. & Training Stds. Comm. 
Steven W. Wray v. Sheriffs' Education & Training Standards Comm. 
J. Stevan North v. Sheriffs' Education & Training Standards Comm. 
Gregory Blake Manning v. Criminal Justice Ed. & Training Stds. Comm. 
Russell Pinkelton Jr. v. Sheriffs' Education & Training Stds. Comm. 
William Franklin Sheet/, v. Sheriffs' Education & Training Stds. Comm. 
James M. Buie v. Criminal Justice Ed. & Training Stds. Comm. 
Burns E. Anderson v. Criminal Justice Ed. & Training Stds. Comm. 
Nelson Falcon v. Sheriffs' Education & Training Stds. Comm. 



93 DOJ 0231 


Chess 


03/28/94 


93 DOJ 1071 


Nesnow 


04/11/94 


93 DOJ 1409 


Gray 


03/03/94 


93 DOJ 1803 


Chess 


06/29/94 


94 DOJ 0040 


Chess 


06/16/94 


94 DOJ 0048 


Gray 


03/29/94 


94 DOJ 0118 


Gray 


08/10/94 


94 DOJ 0196 


Chess 


06/16/94 


94 DOJ 0401 


Nesnow 


08/26/94 


94 DOJ 0574 


Bee too 


10/04/94 


94 DOJ 0611 


Mann 


08/12/94 



9:3 NCR 



218 



9:15 NCR 1234 



MORTUARY SCIENCE 



Mortuary Science v. Perry J. Brown, & Brown's Funeral Directors 



93 BMS 0532 



Chess 



03/28/94 



I 



1225 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



93 OSP 1690 



PUBLIC EDUCATION 

Nancy Watson v. Boaid of Education 93 EDC 0234 

Janet L. Wilcox v. Carteret County Boaid of Education 93 EDC 045 1 

Annice Granville, Phillip J. Granville v. Onslow County Bd. of Education 93 EDC 0742 

Mary Ann Sciullo & Frank Sciullo on behalf of their minor child, 94 EDC 0044 
Samuel W. Sciullo v. State Board of Education 

STATE HEALTH BENEFITS OFFICE 

Linda C. Campbell v. Teachers & St Emp Major Medical Plan 
Timothy L. Coggins v. Teachers' & St Emp Comp Major Med Plan 
P.H.B. v. Teachers & State Employees Comp Major Medical Plan 

STATE PERSONNEL 

Michael L. K. Benson v. Office of State Personnel 

Agricultural and Technical Slate University 

Linda D. Williams v. Agricultuial and Technical State University 
Juanila D. Murphy v. Agricultural and Technical State University 
Thomas M. Simpson v. Agricultural and Technical State University 
Pricella M. Curtis v. A&T State University Curriculum & Instruction 

Department of Agriculture 

Donald H. Crawford v. Department of Agricultuc 

NC School of the Arts 

Rick McCullough v. Search Comm School/Dance, NC School of the Arts 94 OSP 051 1 

Butner Adolescent Treatment Center 



94 OSP 0108 



A1J 



DATE OF 
DECISION 



Chess 02/28/94 

Mann 02/21/94 

Mann 08/01/94 

Gray 07/22/94 



PUBLISHED DECISION 
REGISTER CITATION 



9:2 NCR 108 
9:11 NCR 863 



93 INS 0410 


Becton 


04/22/94 






93 INS 0929 


Morrison 


03/04/94 






94 INS 0345 


Gray 


08/23/94 


9:12 NCR 


945 



Nesnow 



Reilly 



West 



08/23/94 



93 OSP 0089 


Chess 


03/23/94 


93 OSP 0708 


Morrison 


03/16/94 


93 OSP 1393 


Gray 


03/24/94 


94 OSP 0748 


Gray 


08/17/94 



05/23/94 



10/14/94 



Alvin Lamonte Breeden v. Butner Adolescent Treatment Center 

Catawba County 

Sandra J. Cunningham v. Catawba County 

North Carolina Central University 

Dianna Blackley v. North Carolina Central University 
Ha-Yilyah Ha-She'B v. NCCU 



94 OSP 0899 



93 OSP 1097 



89 OSP 0494 
93 OSP 0875 



Chapel Bill 4 Carrhoro City School 

Brenda J. Parker v. Stella Nickerson, Chapel Hill & Carrboro City School 94 OSP 0568 

Cherry Hospital 



Charles F. Fields v. Cherry Hospital 

Gail Marie Rodgers Lincoln v. Cherry Hospital, Goldsboro, NC 27530 

Department of Commerce 

Ruth Daniel-Perry v. Department of Commerce 

Department of Correction 

Leland K. Williams v. Department of Correction 

Elroy Lewis v. North Central Area - Dept of Correction, Robert Lewis 

Steven R. Kcllison v. Department of Correction 

Bert Esworthy v. Department of Correction 

James J. Lewis v. Department of Correction 

Merron Burrus v. Department of Correction 

Lewis Alsbrook v. Department of Correction, Morrison Youth Institution 



94 OSP 0498 
94 OSP 0578 



93 OSP 0725 



Nesnow 



Reilly 



Nesnow 
Becton 



West 



Morrison 
West 



Chess 



10/12/94 



04/29/94 



09/14/94 
04/13/94 



10/06/94 



06/15/94 
10/07/94 



03/04/94 



91 OSP 1287 


Chess 


02/22/94 


92 OSP 1770 


Becton 


05/24/94 


93 OSP 0283 


Chess 


06/15/94 


93 OSP 0711 


Chess 


04/21/94 


93 OSP 1121 


West 


08/31/94 


93 OSP 1145 


West 


09/30/94 


93 OSP 1739 


West 


07/20/94 



9:4 NCR 292 



9:3 NCR 211 



9:1 NCR 63 



9:6 NCR 395 



9:15 



NORTH CAROLINA REGISTER 



November 1, 1994 



1226 



CONTESTED CASE DECISIONS 



AGENCY 

Junius C. Page v. Dcpt. of Correction, Secy. Franklin Freeman 

Richard Hopkins v. Department of Correction 

Alfred B. Hunt v. Department of Correction 

Charles Home v. Equal Emp. Opportunity Officer & Dept. of Correction 

Adrian E. Graham v. Intensive Probation/Iarole 

Thomas W. Creswell, Lisa K. Bradley v. Department of Correction 

Thomas W. Creswell, Lisa K. Bradley v. Department of Correction 

Barry Lee Clark v. Department of Correction 

Edward E. Hodge v. Department of Correction 

Eastern Correctional Institution 

Roy A. Keel & Zebedee Taylor v. Eastern Correctional Institution 
Roy A. Keel & Zebedee Taylor v. Eastern Correctional Institution 

Guilford Correctional Center 
Ann R. Williams v. Guilford Correctional Center #4440 

McDowell Correctional Center 

Michael Junior Logan v. Kenneth L. Setzer, McDowell Corr. Ctr. 

Cosmetic Art Examiners 

Mary Quaintance v. N.C. State Board of Cosmetic Art Examiners 

Department of Crime Control and Public Safety 

Don R. Massenburg v. Department of Crime Control & Public Safety 
Fred L. Kearney v. Department of Crime Control & Public Safety 
J.D. Booth v. Department of Crime Control & Public Safety 
Sylvia Nance v. Department of Crime Control & Public Safety 
Anthony R. Butler v. Highway Patrol 

Ruth P. Belcher v. Crime Control & Public Safety, State Highway Patrol 
LewiB G. Baker v. Crime Control & Public Safety, Office Adj. General 
William Smith v. State Highway fetrol 

Dorothea Dix Hospital 

Bettie Louise Boykin v. Dorothea Dix Hospital 

Durham County Health Department 

Lylla Denell Stockton v. Durham County Health Department 

East Carolina School of Medicine 

Lillie Mercer Atkinson v. ECU, Dept of Comp. Med., 

Dr. William H. Pryor Jr., Sheila Church 
William Lee Perkins v. ECU Sch of Med. Comp. Med. L. Blankenship, 

Tammy Barnes, Wm Pyroe 

Elizabeth City State University 

James Charles Knox v. Elizabeth City State University 

Employment Security Commission of North Carolina 

Rejeanne B. LeFrancois v. Employment Security Commission of N.C. 

Department of Environment, Heath, and Natural Resources 

Steven P. Karasinski v. Environment, Health, and Natural Resources 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


AU 


DECISION 


REGISTER CITATION 


93 OSP 1794 


Mann 


07/08/94 




94 OSP 0041 


Chess 


06/16/94 




94 OSP 0243 


Reilly 


04/20/94 




94 OSP 0244 


Nesnow 


06/16/94 




94 OSP 0261 


Morrison 


04/26/94 




94 OSP 0407* 


Chess 


09/28/94 




94 OSP 0408* 


Chess 


09/28/94 




94 OSP 0437 


Chess 


09/12/94 




94 OSP 0829 


Nesnow 


09/15/94 





94 OSP0160* 4 
94 OSP 0256** 



94 OSP 0428 



94 OSP 0546 



94 OSP 0372 



94 OSP 0831 



93 OSP 1780 



94 OSP 0162 
94 OSP 0741 



Nesnow 
Nesnow 



West 



Gray 



Chess 



07/20/94 
07/20/94 



06/22/94 



09/01/94 



06/14/94 



90 OSP 0239 


Chess 


04/28/94 


91 OSP 0401 


West 


03/18/94 


92 OSP 0953 


Morrison 


10/18/94 


92 OSP 1463 


Reilly 


03/21/94 


93 OSP 1079 


West 


08/30/94 


94 OSP 0190 


Gray 


09/06/94 


94 OSP 0572 


Mann 


07/12/94 


94 OSP 0816 


Morrison 


09/09/94 



Nesnow 09/28/94 

Gray 05/25/94 

Gray 10/06/94 

West 09/30/94 



94 OSP 0207 Gray 06/17/94 



93 OSP 1069 West 04/08/94 



93 OSP 0940 West 09/02/94 



1227 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 



CONTESTED CASE DECISIONS 



AGENCY 



CASE DATE OF PUBLISHED DECISION 

NUMBER ALJ DECISION REGISTER CITATION 



Division of Marine Fisheries 
William D. Nicely v. Environment, Health, & Natural Resources 
Fayetteville State University 

RoBCoe L. Williams v. Fayetteville State Univereity 
Department of Human Resources 



92 OSP 1454 



93 OSP 0487 



Inez Latta v. Department of Human Resources 

Cbarla S. Davis v. Department of Human Resources 

Rose Mary Taylor v. Department of Human Resources, Murdoch Center 93 OSP 0047 

David R. Rodgera v. Jimmy Summerville, Stonewall Jackson School 

Dr. Patricia Sokol v. James B Hunt, Governor and Human Resources 

Bruce B Blackmon, M.D. v. DHR, Disability Determination Services 

Craven County Department of Social Services 



Shirley A. Holland v. Craven Cty. Dept. /Social Services & Craven Cty. 
Nettie Jane Godwin (Lawhom) v. Craven Cty. DSS & Craven Cty. 
Violet P. Kelly v. Craven Cty. Dept. of Social Services & Craven Cty. 

Durham County Department of Social Services 

Belinda F. Jones v. Daniel Hudgins, Durham Cty Dept of Social Svcs 
Ralph A. Williams v. Durham County Department of Social Services 

Haywood County Department of Social Services 
Dorothy Morrow v. Haywood County Department of Social Services 

Pamlico County Department of Social Services 
Mrs. Dietra C. Jones v. Pamlico Department of Social Services 

Lee County Health Department 
James Shackleton v. Lee County Health Department 

Mental Health/Mental Retardation 
Yvonne G. Johnson v. Blue Ridge Mental Health 



93 OSP 0728 

94 OSP 0167 



94 OSP 0186 



94 OSP 0251 



94 OSP 0344 



93 OSP 1604 



Vhke County Menial Health, Developmental Disabilities, and Substance Abuse Services 



Julia Morgan Brannon v. Wake County MH/DD/SAS 

Public Instruction 

Elaine M. Sills v. Department of Public Instruction 

Real Estate Appraisal Board 

Earl Hansford Grubbs v. Appraisal Board 

Smoky Mountain Center 

Betty C. Bradley v. Smoky Mountain Center 

N.C. State University 

Laura K. Reynolds v. N.C. State University - Dept. of Public Safety 
Ashraf G. Khalil v. N.C.S.U. 



94 OSP 0214 



94 OSP 0781 



94 OSP 0753 



93 OSP 1505 



92 OSP 0828 

93 OSP 1666 



Bee ton 



West 



05/04/94 



06/22/94 



9:5 NCR 333 



93 OSP 0830 


Becton 


03/28/94 


93 OSP 1762 


Gray 


03/03/94 


93 OSP 0047 


Gray 


05/06/94 


94 OSP 0087 


Chess 


03/16/94 


94 OSP 0357 


Chess 


08/22/94 


94 OSP 0410 


Nesnow 


09/14/94 



93 OSP 1606 


Gray 


07/01/94 






93 OSP 1607 


Gray 


07/18/94 


9:9 NCR 


655 


93 OSP 1805 


Reilly 


07/05/94 







Chess 
Reilly 



West 



Chess 



Gray 



Becton 



Reilly 



Gray 



Nesnow 



Becton 



Morgan 
Nesnow 



04/11/94 
09/13/94 



06/17/94 



08/09/94 



08/17/94 



03/18/94 



04/14/94 



10/06/94 



08/24/94 



09/26/94 



05/26/94 
09/19/94 



9:14 NCR 1141 



9:15 



NORTH CAROLINA REGISTER 



November 1, 1994 



1228 



CONTESTED CASE DECISIONS 






AGENCY 



CASE 
NUMBER 



ATJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Department of Transportation 

Phyllis W. Newnam v. Department of Transportation 

Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y. Dept. of Transportation 

Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y. Dept. of Transportation 

Betey Johnston ftnvell v. Department of Transportation 

Arnold Craig v. Samuel Hunt, Secretary Department of Transportation 

Susan H. Cole v. Department of Transportation, Div. of Motor Vehicles 

Susan H. Cole v. Department of Transportation, Div. of Motor Vehicles 

Clyde Lem Hairston v. Department of Transportation 

Angela Trueblood Westmoreland v. Department of Transportation 

Bobby R. Mayo v. Department of Transportation 

Tony Lee Curtis v. Department of Transportation 

Darrell H. Wise v. Department of Transportation 

Henry C. Puegh v. Department of Transportation 

Kenneth Ray Harvey v. Department of Transportation 

Bobby R. Mayo v. Department of Transportation 

Michael Bryant v. Department of Transportation 

University of North Carolina at Chapel Hill 

William ftul Fearrington v. University of North Carolina at Chapel Hill 

Eric W. Browning v. UNC-Chapcl Hill 

Beth Anne Miller, R.N.-C v. UNC James A. Taylor Sid Health Svc. 

University of North Carolina at Greensboro 

James S. Wilkinson v. UNCG Mice Agency 

UNC Hospitals 

Barry Alonzo Nichols v. UNC Hospitals Central Dist. Sect. 

Wake County School System 

Lula Mae Freeman v. Wake County School System 

The Whitaker School 



92 OSP 1799 


Morgan 


08/11/94 






93 OSP 0297* 1 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0500* 1 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0550 


MornBon 


03/28/94 






93 OSP 0586 


Nesnow 


07/11/94 






93 OSP 0908 


Morrison 


07/15/94 






93 OSP 0908 


Morrison 


10/07/94 






93 OSP 0944 


Chess 


02/28/94 






93 OSP 1001 


Morrison 


09/30/94 


9:14 NCR 


1136 


93 OSP 1004 


Nesnow 


09/01/94 






93 OSP 1037 


Reilly 


08/26/94 






93 OSP 1353 


Gray 


07/26/94 






93 OSP 1710 


Nesnow 


05/24/94 






94 OSP 0423 


Morrison 


08/17/94 






94 OSP 0632 


Gray 


08/23/94 






94 OSP 0728 


Chess 


08/15/94 







91 OSP 0905 

93 OSP 0925 

94 OSP 0800 



93 OSP 0850 



94 OSP 0509 



94 OSP 0576 



Reilly 10/19/94 

Morrison 05/03/94 
Nesnow 09/26/94 



Chess 



08/22/94 



Morrison 06/15/94 



Morrison 06/28/94 






9:5 NCR 342 



Dwayne R. Cooke v. The Whitaker School 

Winston-Salem State University 

David Phillip Davis v. Winston-Salem State University 

Tonny M. Jarrett v. Winston-Salem State University Campus Police 

STATE TREASURER 



94 OSP 0328 



93 OSP 0947 
93 OSP 0953 



Chess 06/02/94 



Reilly 09/28/94 

Reilly 09/12/94 



Retirement Systems Division 

Molly Wiebenson v. Bd./Trusteesneachers' & State Employees' Ret. Sys. 
Judith A. Dorman v. Bd. /Trustees/Teachers' & State Employees' Ret. Sys. 
Nathan Fields v. Bd.nYustees/Teachers' & State Employees' Ret. Sys. 
John C. Russell v. Bd./Trusteesneachers' & State Employees' Ret. SyB. 
Marion Franklin Howell v. Teachcra' & State Employees' Retirement Sys. 
Robert A. Slade v. Bd./Trustees/N.C. Local Govtl. Emp. Ret. System 
Connie B. Grant v. Bd. /Trustees/Teachers' & State Employees' Ret. Sys. 
James E. Walker, Ind. & Admin for the Estate of Sarah S. Walker v. Bd./ 

Trustees/N.C. Local Govt. Emp. Ret. System 
Eltzabeth M. Dudley v. Bd. /Trustees/Teachers' & State Emps' Ret. Sys. 
Kenneth A. Glenn v. Bd. /Trustees/Teachers' & St Employees' Ret. Sys. 
Joseph Fulton v. Bd.rrrustees/Teachers' & State Employees' Ret. Sys. 
Deborah W Stewart v. Bd. /Trustees/Teachers' & State Employees' 

Ret. SyB. and Anthony L. Hope & Derrick L. Hope 

TRANSPORTATION 



Taylor & Murphy Construction Co. , Inc. v. Department of Transforation 93 DOT 1404 Chess 



92 DST 0015 


Morgan 


05/26/94 


9:6 NCR 


403 


92DST 0223 


Morgan 


08/11/94 






93 DST 0161 


Morrison 


05/18/94 






93 DST 0164 


West 


03/07/94 






93 DST 0475 


Nesnow 


08/04/94 


9:12 NCR 


941 


93 DST 0785 


Bee ton 


03/18/94 


9:1 NCR 


68 


93 DST 0883 


Chess 


06/15/94 






93 DST 1054 


Bee ton 


05/31/94 


9:7 NCR 


490 


93 DST 1474 


Nesnow 


03/28/94 






93 DST 1612 


Morrison 


05/18/94 






93 DST 1731 


Bee ton 


05/25/94 






94 DST 0045 


Nesnow 


07/25/94 


9:10 NCR 


768 



08/24/94 



1229 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 





CONTESTED CASE DECISIONS 










CASE 




DATE OF 


PUBLISHED DECISION 


AGENCY 




NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


UNIVERSITY OF NORTH CAROLINA 












Heather Anne Porter v. Slate Residence Committee 


92 UNC 0799 


Neanow 


08/23/94 




Nixon Omolodun v. UNC Physicians and Associates 


94 UNC 0295 


Chess 


06/27/94 





9:15 NORTH CAROLINA REGISTER November 1, 1994 1230 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF HYDE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

94 EHR 0392 



EVERHART & ASSOCIATES, INC. 
AND HETTTE TOLSON JOHNSON, 
Petitioners, 



V. 



DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES, 
Respondent, 

and 

ZELIG ROBINSON, 

Intervenor-Respondent 




This matter came on for hearing before the undersigned administrative law judge on September 27, 
1994, in Beaufort. 

Mr. C. R. Wheatley III represented the petitioners. Mr. David G. Heeter and Mr. John A. Hedrick 
represented the respondent. The Intervenor-Respondent appeared p_ro se. The petitioners introduced three 
exhibits. The parties filed Offers of Proof on October 10, 11 and 12, 1994. 

ISSUE 

Did the respondent properly deny the petitioners' Coastal Area Management Act (CAMA) permit? 

FINDINGS OF FACT 

1. This contested case, commenced on March 24, 1994, concerns the denial of a CAMA permit 
to construct a bridge and develop a nine lot subdivision on Ocracoke. The permit, by letter dated March 4, 
1994, was denied because the proposal was determined to be inconsistent with the May 1992 CRC Certified 
Hyde County/Ocracoke Land Use Plan Update in that (i) the proposal involved construction on sound or 
estuarine islands within one mile of Ocracoke Island, (ii) the proposal circumvented a policy that no new 
septic tank systems installed on Ocracoke shall exceed a capacity of 1,500 gallons and (iii) the proposal 
involved construction on 404 wetlands. 

2. A hearing was set for August 1 1 , 1994, and was continued to September 27, 1994. Mr. Zelig 
Robinson filed a Verified Motion to Intervene on September 20, 1994. The respondent filed a Motion in 
Limine on the same date. The Motions were heard at the commencement of the hearing. 

3 . Mr. Zelig Robinson was allowed to intervene as a party with all the rights of a party, except 
that he was prohibited, due to the lateness of the Motion, from raising issues other than those set forth in the 
denial letter. 

4. The Motion in Limine contained several citations of North Carolina Supreme Court cases and 
argued that the meaning of the Land Use Plan Update had to be ascertained from the document itself and not 
from testimony of individuals who developed the plan. The undersigned agreed, allowed the Motion and 
prohibited all parties from presenting evidence concerning the meaning of the document. The undersigned 
permitted Offers of Proof on this issue. 



1231 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 



CONTESTED CASE DECISIONS 



5. The parties then made lengthy arguments to the undersigned concerning the meaning of the 
Land Use Plan Update. The petitioner introduced the March 4, 1994, denial letter (P. Exh. 1), the Land Use 
Plan Update (P. Exh. 2), and a drawing of the proposed development named "Egret's Nest" (P. Exh. 3). The 
undersigned, concluding that the plain language of the Land Use Plan Update resolved the issues presented 
in the denial letter, announced his recommended decision. 

6. All maps contained in P. Exh. 2 show that the proposed development is on a peninsula and 
not on an island. The document states that "(w)ithin one mile of Ocracoke Island, Hyde County opposes any 
construction on sound or estuarine islands" (p. IV- 11). The March 4, 1994, denial letter is grounded on the 
proposal's "inconsisten(cy) with the local land use plan." The denial letter further cites GS 113A- 120(a)(8) 
which states that "(t)he responsible official or body shall deny an application for a permit upon finding . . . 
that the development is inconsistent with the State guidelines or the local land-use plans." 

7. P. Exh. 3 shows the proposed development with nine lots, the two drain fields and repair 
areas, and the 404 wetlands line. The map indicates that a substantial amount of most of the nine lots is 404 
wetlands. P. Exh. 2, p. IV-11, states that "(n)o construction on (pile supported or otherwise) or filling, 
excavating or draining of any 404 wetland on Ocracoke Island will be allowed." 

CONCLUSIONS OF LAW 

1. The proposal is not inconsistent with the May 1992 CRC Certified Hyde County/Ocracoke 
Land Use Plan Update in that the proposal involves construction on sound or estuarine islands within one mile 
of Ocracoke Island because the Land Use Plan Update (i) shows the proposal to be located on a peninsula and 
(ii) prohibits construction only on sound and estuarine islands. 

2. The proposal is not inconsistent with the May 1992 CRC Certified Hyde County/Ocracoke 
Land Use Plan Update in that the proposal circumvents a policy that no new septic tank systems installed on 
Ocracoke shall exceed a capacity of 1,500 gallons because the policy prohibits multiple-unit construction, such 
as a condominium, from dividing one sewage system into several systems less than 1 ,500 gallons but does not 
prohibit single-unit construction, such as a house, from sharing a sewage system with other houses. 

3. The proposal is inconsistent with the May 1992 CRC Certified Hyde County/Ocracoke Land 
Use Plan Update in that the proposal, as established by P. Exh. 3, involves construction on 404 wetlands. 

4. The respondent properly denied a CAMA permit to the petitioners. 

RECOMMENDED DECISION 

It is recommended that the denial of the CAMA permit be upheld because of proposed construction 
on 404 wetlands. However, it is recommended that the petitioners be afforded an opportunity to modify their 
proposal, if possible, so that no construction of dwellings or sewage systems will occur on the 404 wetlands. 

MEMORANDUM 

The first reason for denial of the CAMA permit, as stated in the March 4, 1994, letter, was the 
subject of most of the arguments at the hearing. This reason was that the proposal was inconsistent with the 
May 1992 CRC certified Hyde County/Ocracoke Land Use Plan Update in that the proposal involved 
construction on sound or estuarine islands within one mile of Ocracoke Island. 

The respondent, which wrote the denial letter, could have cited State guidelines but rather referred 
only to inconsistencies with the local land-use plan. See GS 1 13A-1 20(a)(8) in Finding of Fact #6. The issue 
became, therefore, not whether the proposal was an island or peninsula but whether the proposal was 
consistent or inconsistent with the local land-use plan. That plan clearly showed that the proposal involved 
a peninsula and that the plans prohibition on construction pertained only to islands. See Finding of Fact #6. 



9:15 NORTH CAROLINA REGISTER November 1, 1994 1232 



CONTESTED CASE DECISIONS 



As stated by the undersigned during the hearing, the plain language of the statute must control. This 
is a standard rule of statutory construction. For example, in Reves v. Ernst & Young . 113 S Ct 1163, 1169 
(1993), the United States Supreme Court stated: 

In determining the scope of a statute, we first look to its language. If the statutory language 
is unambiguous, in the absence of a 'clearly expressed legislative intent to the contrary, that 
language must ordinarily be regarded as conclusive.' 

Furthermore, any such contrary legislative intent must be found in the statute or local land-use plan 
in question. In its Motion in Limine, filed just seven days before the hearing, the respondent quoted from State 
v. Partlow , 91 NC 550, 552 that: 

But the meaning must be ascertained from the statute itself. ... It cannot be proved by a 
member of the legislature or other person, whether interested in its enactment or not. 

Finally, as Justice Scalia observed in MCI v American Tel, and Tel. . 1 14 S. Ct. 2223, 2231 (1994), 
"the most relevant time for determining a statutory term's meaning" is when the statute became law. It is 
certainly not years later when parties in litigation produce witnesses to provide a certain spin on a local land- 
use plan. 

In this case, the plain language of the local land-use plan controls. Construction is only prohibited on 
certain islands; the plan depicts the property as a peninsula; and therefore, the construction prohibition is 
inapplicable to the proposal. 

NOTICE 

The parties have the right to file exceptions and to present written arguments to the Coastal Resources 
Commission. The final decision in this contested case shall be made by that agency. The agency will mail 
a copy of the final decision to the parties and the Office of Administrative Hearings. 

This the 18th day of October, 1994. 






Robert Roosevelt Reilly, Jr. 
Administrative Law Judge 



1233 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF NORTHAMPTON 



IN THE OFFICE OF 

ADMTNISTRATTVE HEARINGS 

94 DOJ 0574 



BURNS E. ANDERSON, 
Petitioners, 



v. 



PROPOSAL FOR DECISION 
N.C Gen. Stat 150B40(e) 



N.C CRIMINAL JUSTICE EDUCATION AND 
TRAINING STANDARDS COMMISSION, 
Respondent, 



This matter was commenced by a request filed with the Director of the Office of Administrative 
Hearings for the assignment of an Administrative Law Judge. The administrative hearing was held before 
Brenda B. Becton, Administrative Law Judge, on September 19, 1994, in Jackson, North Carolina. 



APPEARANCES 



Petitioner: 
Respondent: 



Pro se. 



Robin P. Pendergraft, Special Deputy Attorney General, North Carolina 
Department of Justice, Raleigh, North Carolina. 

ISSUE 



Is the Petitioner's certification as a correctional officer with the North Carolina Department of 
Correction properly suspended on the grounds that he has been convicted of a criminal offense or unlawful 
act defined in 12 NCAC 9A .0103 as a Class B misdemeanor? 



1. 
2. 

3. 
4. 



RULES AND STATUTES INVOLVED 

12 NCAC 9A .0103(4) 
12 NCAC 9A .0103(20)(b) 

12 NCAC 9A .0203 

12 NCAC 9A .0204(b)(3)A 

12 NCAC 9A .0205(b)(1) 

N.C. GEN. STAT. §14-33(b) 

EXHIBITS 

The following exhibits offered by the Respondent were received in evidence: 

Warrant For Arrest/Judgment (93 CR 2355). 

Memorandum dated October 19, 1993 from Petitioner to Tommy King, Assistant Superintendent, 
Tillery Correctional Inst. 

Letter dated December 20, 1993 from Petitioner to Criminal Justice Standards Division. 

Memorandum dated January 1, 1994 from Superintendent John R. Williams, Tillery Correctional 
Center to Petitioner regarding Final Written Warning. 



9:15 



NORTH CAROLINA REGISTER 



November 1, 1994 



1234 



CONTESTED CASE DECISIONS 



5. Deferral of Suspension letter dated March 1, 1994 from David D. Cashwell, Director, Criminal 
Justice Standards Division to Petitioner. 

6. Letter received by the Criminal Justice Standards Division on April 25, 1994 from Petitioner to David 
D. Cashwell. 

Based upon the official documents in the file, sworn testimony of the witnesses, and other competent 
and admissible evidence, the undersigned makes the following: 

FINDINGS OF FACT 

Stipulated Facts 

1 . "Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are 
proper, that Petitioner received the Deferral of Suspension of his Correctional Officer Certification 
letter mailed by Respondent on March 1, 1994." 

2. "The North Carolina Criminal Justice Education and Training and Standards Commission 
(Respondent) has the authority granted under Chapter 1 1C of the North Carolina General Statutes and 
Title 12 of the North Carolina Administrative Code, Chapter 9, to certify criminal justice officers and 
to deny, revoke or suspend such certification." 

3. "Petitioner applied with Respondent for certification as a correctional officer with the North Carolina 
Department of Correction (Tillery Correctional Center) in June 1988." 

4. "Petitioner was issued a probationary certification (PRB 239272016) by Respondent effective June 
1, 1988." 

5. "Petitioner successfully completed the Basic Course for Correctional Officers at Caledonia Complex 
on August 5, 1988." 

6. "Petitioner was issued a general certification (GNB 23927016) by the Respondent effective June 1, 
1989." 

7. "On or about Tuesday, October 12, 1993, Petitioner was charged with the criminal offense of assault 
with a deadly weapon inflicting serious injury, a felony in violation of N.C.G.S. §14-32(b). 
(Criminal case 93 CR 2355)." 

8. "On November 29, 1993, in the above- referenced criminal case, Petitioner pled guilty to the general 
misdemeanor of assault on a female and District Court Judge Thomas Newbern imposed a term of 
imprisonment of not less than but not more than four (4) months which was suspended upon the 
following conditions that petitioner: be placed on unsupervised probation for two (2) years; commit 
no criminal offense; possess no firearm, explosive or other deadly weapon; remain gainfully 
employed; pay $100.00 fine and $100.00 community service fee; complete 300 hours of community 
service; and not assault nor communicate a threat to his wife for two (2) years." 

Adjudicated Facts 

9. The Petitioner and his wife, Marie Anderson, have been married for eight years and are the parents 
of two children, ages five and seven. 

10. On October 12, 1993, the Petitioner learned that his wife was having an affair. After receiving this 
distressing information, the Petitioner went to the liquor store and purchased a bottle of Seagram's 
gin. He returned to his home and drank almost the entire bottle. 



1235 NORTH CAROLINA REGISTER November 1, 1994 9:15 



CONTESTED CASE DECISIONS 



11. While the Petitioner was inebriated state, the wife of the person with whom Petitioner's wife was 
allegedly having an affair, came to the Petitioner's home. Petitioner's wife and the woman began to 
argue and fight. 

12. The Petitioner went to the doorway of his house. The lady hollered to the Petitioner that his wife was 
having an affair with her husband. The Petitioner's wife came up to him and asked him if he was 
going to believe the woman. 

13. The Petitioner shoved his wife back into the house, causing her to fall over the coffee table. 

14. The Petitioner does not remember the subsequent events. 

15. The Petitioner's wife testified that he did not stomp or kick or strike her. She does not know where 
the officer who questioned her at the hospital while she was being treated got that information. 

16. The Petitioner is not an abusive husband. He had never struck or caused his wife any physical injury 
prior to this incident. 

17. The Petitioner retained the services of an attorney to represent him on the criminal charges. On the 
advice of his attorney and the recommendation of the district attorney, the Petitioner pled guilty to 
assault on a female because it was believed that such a plea was the most certain way to guarantee 
that his job status would not be affected. It was the belief of all concerned that a plea and imposition 
of a sentence of four months or less would not jeopardize the Petitioner's certification. 

18. Although the Petitioner entered a plea of guilty, his wife testified in court before the presiding judge 
that the Petitioner had not struck, kicked, or stomped her. 

19. Fifteen days after pleading guilty to assault on a female, the Petitioner received notification that his 
certification as a correctional officer was subject to suspension. 

20. By the time the Petitioner received notification that his certification was in jeopardy, the ten day time 
period for appealing his criminal conviction to superior court had expired. 

21. 12 NCAC 9A .0103(4) provides, in pertinent part, that "'Convicted' or 'Conviction' means and 
includes, for purposes of this Chapter, the entry of: (a) a plea of guilty. ..." 

22. 12 NCAC 9A .0103(20)(b) provides, in pertinent part, that: 

"Class B misdemeanor" means an act committed or omitted in violation of 
any common law, criminal statute, or criminal traffic code of this state, or 
any other jurisdiction, either civil or military, for which the maximum 
punishment allowable for the designated offense under the laws and statutes 
of the jurisdiction in which the offense occurred includes imprisonment for 
a term of more than six months but not more than two years. 

23. The Respondent's Administrative Rules provide that a criminal justice officer's certification may be 
suspended, denied, or revoked based upon the commission or conviction of a Class "B" misdemeanor. 

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the 
following: 

CONCLUSIONS OF LAW 

1. The parties are properly before the Office of Administrative Hearings. 



9:15 NORTH CAROLINA REGISTER November 1, 1994 1236 



CONTESTED CASE DECISIONS 



2. The Respondent has the authority under 12 NCAC 9A .0204 to revoke, suspend or deny certification 
as a criminal justice officer. 

3. Under the Respondent's rules, the Petitioner's plea of guilty to assault on a female constitutes a 
"conviction" of a "Class B Misdemeanor" even though the sentence imposed was less than six months 
because the crime was one for which the maximum punishment allowable was imprisonment for more 
than six months but not more than two years. 12 NCAC 9A .0103(4), (20) (b). 

4. As a result of his guilty plea, the Petitioner was found guilty of a general misdemeanor and, 
therefore, he was in violation of 12 NCAC 9A .0204(b)(3)(A). 

5. Although the Respondent has the authority to suspend the Petitioner's certification, there is sufficient 
mitigating evidence to warrant imposition of a lesser penalty. Pursuant to 12 NCAC 9A .0205(b), 
the Commission may substitute a period of probation in lieu of suspension of certification following 
an administrative hearing. 

PROPOSAL FOR DECISION 

The N.C. Criminal Justice Education and Training Standards Commission will make the Final 
Decision in this contested case. Based upon the foregoing findings of fact and conclusions of law, it is hereby 
proposed that the N.C. Criminal Justice Education and Training Standards Commission enter a final decision 
substituting a period of probation in lieu of suspension of the Petitioner's certification as a criminal justice 
officer. 

NOTICE 

Before the N.C. Criminal Justice Education and Training Standards Commission makes the FINAL 
DECISION, it is required by North Carolina General Statutes section 150B-40(e) to give each party an 
opportunity to file exceptions to this PROPOSAL FOR DECISION, and to present written arguments to those 
in the agency who will make the final decision. 

A copy of the final agency decision or order shall be served upon each party personally or by certified 
mail addressed to the party at the latest address given by the party to the agency and a copy shall be furnished 
to the attorney of record. N.C. Gen. Stat. §150B-42(a). It is requested that the agency furnish a copy to the 
Office of Administrative Hearings. 

This the 4th day of October, 1994. 



Brenda B. Becton 
Administrative Law Judge 



1237 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 





NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 




1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two 


of these, 


titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 


department in the North Carolina executive branch of government has been assigned a title 


number. 


Titles are further broken down into chapters which shall be numerical in order. The other two, 


subchapters and sections are optional subdivisions to be used by agencies when appropriate. 




TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 


[TTLE DEPARTMENT LICENSING BOARDS 


CHAPTER 


1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneeis 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


j 19A 


Transportation 


Midwifery Joint Committee 


33 


! 20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Title 21 contains the chapters of the various occupational licensing boards. 



NORTH CAROLINA REGISTER 



November 1, 1994 



1238 



CUMULATIVE INDEX 






CUMULATIVE INDEX 

(April 1994 - March 1995) 






Pages 


Issue 


1 - 75 


1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 


April 

April 

May 

May 

June 

June 

July 

July 

August 

August 

September 

September 

October 

October 

November 


76 - 122 


123 - 226 

227 - 305 


306 - 348 


349 - 411 


412 - 503 


504 - 587 


588 - 666 


667 - 779 


780 - 876 


877 - 956 


957 - 1062 


1063 - 1151 


1152 - 1241 


Unless otherwise identified, page references in this Index 


are to 


proposed rules. 


ADMINISTRATION 

State Employees Combined Campaign, 878 






AGRICULTURE 

Plant Industry, 127 






COMMERCE 

Alcoholic Beverage Control Commission, 423 
Banking Commission, 884 
Energy Division, 4 






CORRECTION 

Prisons, Division of, 1157 






CRIME CONTROL AND PUBLIC SAFETY 

State Highway Patrol, Division of, 243 






CULTURAL RESOURCES 

Arts Council, 960 






ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 443, 825, 1185 

DEM/Air Quality, 80, 805 

Departmental Rules, 254 

Environmental Management, 81, 258, 352, 616, 959 

Health Services, 323, 370, 445, 834, 913, 1000, 1112 

Marine Fisheries Commission, 820, 989, 1109 

Mining Commission, 442 






1239 NORTH CAROLINA REGISTER 


November 1, 1994 9:15 



1 






CUMULATIVE INDEX 



NPDES Permit, 3, 232 

Parks and Recreation, 1194 

Radiation Protection Commission, 678 

Solid Waste Management, 171, 364 

Water Resources, 165, 255 

Wildlife Resources Commission, 38, 42, 84, 358, 830, 910, 999 

Wildlife Resources Commission Proclamation, 125 

FINAL DECISION LETTERS 

Voting Rights Act, 2, 312, 506, 594, 958 

GENERAL STATUTES 

Chapter 150B, 780 

GOVERNORyLT. GOVERNOR 

Executive Orders, 1, 123, 227, 306, 349, 412, 504, 588, 667, 877, 957, 1152 

HUMAN RESOURCES 

Child Day Care Commission, 10 

Children's Services, 136 

Day Care Rules, 148 

Departmental Rules, 668 

Facility Services, 4, 128, 423, 509, 668, 890 

Medical Assistance, 318, 440, 513, 597, 964, 1155 

Medical Care, 1161 

Mental Health, Developmental Disabilities and Substance Abuse Services, 13, 24, 36, 313, 430, 961, 

1063 
Social Services, 136, 595, 802, 1167 
Vocational Rehabilitation Services, 434 

INDEPENDENT AGENCIES 

State Health Plan Purchasing Alliance Board, 99, 1030 

INSURANCE 

Actuarial Services Division, 1072 
Agent Services Division, 1065 
Departmental Rules, 891 
Financial Evaluation Division, 892 
Life and Health Division, 525, 905, 1071 
Medical Database Commission, 605 
Multiple Employer Welfare Arrangements, 76 
Property and Casualty Division, 892 
Special Services Division, 76 

JUSTICE 

Alarm Systems Licensing Board, 351, 614, 804, 1175 

Criminal Justice Education and Training Standards Commission, 149, 981 

Private Protective Services, 802, 1 174 

Sheriffs' Education & Training Standards Commission, 670, 986, 1075 

State Bureau of Investigation, 234, 530 

LABOR 

Boiler and Pressure Vessel, 1076 
Mine and Quarry Division, 239 
OSHA, 77, 160, 675, 906 



9:15 NORTH CAROLINA REGISTER November 1, 1994 1240 



CUMULATIVE INDEX 



Private Personnel Services, 1176 
Variance, 230 

LICENSING BOARDS 

Acupuncture Licensing Board, 44 

Auctioneers Licensing Board, 836 

Barber Examiners, 563 

Chiropractic Examiners, 376 

Cosmetic Art Examiners, 280, 1027 

Dietetics/Nutrition, 1115 

Electrical Contractors Examiners, 1199 

Electrolysis Examiners, 1204 

Landscape Architects, Board of, 95 

Medical Examiners, 192, 565, 1119, 1206 

Mortuary Science, 720, 1120 

Nursing, Board of, 45, 724, 1209 

Opticians, Board of, 845 

Optometry, Board of Examiners, 1 94 

Physical Therapy Examiners, 566 

Plumbing, Heating and Fire Sprinkler Contractors, Board of, 96, 725 

Practicing Psychologists, Board of, 97 

Professional Counselors, Board of Licensed, 50 

Professional Engineers and Land Surveyors, 728, 924 

Sanitarian Examiners, 730 

LIST OF RULES CODIFIED 

List of Rules Codified, 53, 196, 281, 378, 635, 742, 926, 1041 

PUBLIC EDUCATION 

Elementary and Secondary Education, 375, 540, 920, 1197 

SECRETARY OF STATE 

Land Records Management Division, 712 
Notary Public Division, 1112 
Securities Division, 476, 616, 709 

STATE PERSONNEL 

Office of State Personnel, 477, 847, 1214 

TAX REVIEW BOARD 

Orders of Tax Review, 415 

TRANSPORTATION 

Highways, Division of, 85, 718, 923, 1114 
Motor Vehicles, Division of, 89, 276, 542 



I 



1241 



NORTH CAROLINA REGISTER 



November 1, 1994 



9:15 



NORTH CAROLINA ADMINISTRATIVE CODE 



The full publication consists of 53 volumes, totaling in excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the full publication including supplements can be 
purchased for seven hundred and fifty dollars ($750. 00). Individual volumes may also be purchased with 
supplement service. Renewal subscriptions for supplements to the initial publication are available at one-half 
the new subscription price. 



PRICE LIST FOR THE SUBSCRIPTION YEAR 

New Total 

Volume Title Chapter Subject Subscription* Quantity Price 



53 


Full Code 




All titles $ 


750.00 


1 


1 


1 - 38 


Administration 


90.00 


2 


2 


1 -24 


Agriculture 


75.00 


3 


2 


25 -52 


Agriculture 


75.00 


4 


3 


1 -4 


Auditor 


10.00 


5 


4 


1 -2 


Commerce (includes ABC) 


45.00 


6 


4 


3 -20 


Commerce 


90.00 


7 


5 


1 -2 


Correction 


60.00 


8 


5 


3 -4 


Correction 


30.00 


9 


6 


1 -4 


Council of State 






7 


1 - 12 


Cultural Resources 


60.00 


10 


8 


1 -9 


Elections 


10.00 


11 


9 


1 -4 


Governor/Lt. Governor 


45.00 


12 


10 


1 -2 


Human Resources 


30.00 


13 


10 


3A- 3K 


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90.00 


14 


10 


3L- 3R 


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(includes CON) 


45.00 


15 


10 


3S - 3W 


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30.00 


16 


10 


4-6 


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30.00 


17 


10 


7 


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30.00 


18 


10 


8 -9 


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30.00 


19 


10 


10 


Human Resources 


30.00 


20 


10 


11 - 14 


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60.00 


21 


10 


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45.00 


22 


10 


18 


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75.00 


23 


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90.00 


24 


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25 


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34-41 


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60.00 


26 


10 


42 


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45.00 


27 


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28 


11 


1 - 19 


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29 


12 


1 - 12 


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90.00 


30 


13 


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31 


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7 


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32 


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34 


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35 


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36 


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38 


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16 

17 

17 

18 

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21 

21 

22 

23 

24 

25 

26 


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38 - 70 Licensing Boards 
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1 State Personnel 60.00 
1 - 4 Administrative Hearings 10.00 

Subtotal 

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45 






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47 






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